THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


MONTGOMERY'S  MANUAL 

OF 

FEDERAL  PROCEDURE 


By 
CHARLES  C.  MONTGOMERY,  B.  A.,  LL.  B. 

IU 

OF  THE  Los  ANGELES,  CALIFORNIA,  BAR. 

INSTRUCTOR,  EQUITY  JURISPRUDENCE,  EQUITY  PLEADING  AND 
FEDERAL  PROCEDURE,   COLLEGE  OF  LAW,   UNIVERSITY 
OF  SOUTHERN  CALIFORNIA.     FORMERLY  PRO- 
FESSOR CONSTITUTIONAL  LAW,  CREIGHTON 
UNIVERSITY,  OMAHA,  NEBRASKA. 


SAN  FRANCISCO 

BANCROFT- WHITNEY  COMPANY 

1914. 


r 

it  r  - 
lv>^ 


Copyright  1914 

by 

Bancroft- Whitney  Co. 


DEDICATION. 

To  My  Father,  C.  S.  Montgomery,  of  the  Omaha  Bar,  in 
token  of  affectionate  esteem,  and  admiration  for  his  learning  in 
the  subject  herein  treated. 


66V685 


PREFACE 

This  manual  contains  in  one  volume,  of  convenient  size  for  office 
or  court  room  use,  verbatim  all  the  Federal  statutes  and  court 
rules  (except  district  courts)  relating  to  the  practice  and  procedure 
of  the  ordinary  law,  equity,  or  criminal  case  in  the  Federal  courts, 
with  many  forms  and  suggestions  as  to  the  steps  to  be  taken  in 
such  cases. 

Many  statutes  on  procedure  are  not  included  in  the  new  Judi- 
cial Code, — particularly  statutes  of  limitations,  evidence,  wit- 
nesses, depositions,  and  costs  and  fees.  These  are  included  ver- 
batim in  the  text,  as  well  as  the  provisions  of  the  Judicial  Code 
annotated,  and  with  amendments  to  date.  The  Judicial  Code  is 
also  set  out  in  its  original  form  in  the  Appendix,  with  references 
to  the  places  where  its  various  provisions  may  be  found  in  the  text. 

The  new  equity  rules  are  set  out  and  annotated  in  the  Appendix, 
and  quoted  verbatim  in  the  text  whenever  bearing  on  the  subject 
thereof. 

The  Supreme  Court  rules  and  rules  of  all  the  Circuit  Courts  of 
Appeals  are  set  out  in  the  Appendix,  and,  where  necessary,  are 
quoted  and  referred  to  in  the  text. 

The  verbatim  quoting  of  the  statutes  and  rules  is  in  such  form 
that  there  can  be  no  confusion  as  to  what  is  and  what  is  not  a 
part  of  the  statute  or  rule  quoted. 

The  forms  are  scattered  through  the  work  in  juxtaposition  to 
the  laws  or  rules  on  which  they  are  based. 

There  are  threefold,  and  in  many  instances  fourfold,  references 
to  other  works,  authoritative  publications  containing  such  statutes 
or  rules.  With  the  assistance  of  the  Manual,  the  practitioner  may, 
with  the  present  law  in  convenient  form  at  hand,  quickly  refer  to 
its  former  condition,  and  note  the  similarities  or  changes  therein. 
The  references  and  annotations  will  also  be  useful  in  working  out 
some  of  the  finer  points  of  practice,  the  work  being  designed  as  a 
guide  book  rather  than  an  exhaustive  treatise. 

v 


VI  PREFACE 

I  am  gratefully  indebted  to  Mr.  Claire  T.  Van  Etten,  of  the 
Los  Angeles  Bar,  for  Chapters  11,  28,  39,  40,  and  41,  relating  to 
appellate  jurisdiction  and  procedure  of  the  Supreme  Court  and 
Circuit  Court  of  Appeals,  and  also  Chapter  37,  on  "Keceivers  and 
Injunctions,"  and  for  other  valuable  assistance  in  the  work.  I  ana 
likewise  indebted  to  Mr.  Paul  Valles,  of  the  Los  Angeles  Bar, 
for  the  annotations  to  the  Judicial  Code,  the  arrangement  of  the 
rules  of  the  Circuit  Court  of  Appeals  in  the  Appendix,  and  for 
much  other  useful  aid  in  the  preparation  of  the  work. 

CHARLES  C.  MONTGOMERY. 
Los  Angeles,  California, 
May  1,  1914. 


TABLE  OF  CONTENTS 


CHAPTER 

1.  Federal  Courts  and  Their  Jurisdiction — In  General,  §§  1-12. 

2.  District  Courts — Organization — Officers,  §§  20-42. 

3.  District  Court — Organization — Further  as  to,   §§  60-73. 

4.  Judicial    Districts — Terms   and  Places  of   Holding   Court  in   the   Several 

States,  §§  100-148. 

5.  Venue  of  Actions  in  the  District  Court — Territorial  Jurisdiction,  §§  160- 

180. 

6.  District  Court — Jurisdiction  Original  and  Appellate,  §§  190-209. 

7.  Federal  Question — Ground  of  Jurisdiction,   §§  215-226. 

8.  Diverse  Citizenship — Ground  of  Jurisdiction,  §§  230-250. 

9.  Amount  in  Controversy  as  Affecting  Jurisdiction,  §§  260-271. 

10.  "Removal  of  Causes — Jurisdiction  and  Procedure,  §§  285-311. 

11.  Removal  from  State  Court  of  Last  Resort  to  U.  S.  Supreme   Court  by 

Writ  of  Error — Jurisdiction,  §§  330-339. 

12.  Summaries Original   Jurisdiction,    Removal,    Amount,    Venue   for    the 

Several  Matters  of  District  Court  Cognizance,  §§  350-381. 

13.  Statutes  of  Limitations,  §§  390-412. 

14.  Evidence,  §§  420-461. 

15.  Witnesses,  §§  470-497. 

16.  Depositions,  §§  500-525. 

17.  Costs  and  Fees,  §§  530-568. 

18.  An  Action  at  Law — Summary,  §§  580-593. 

19.  Initial  Pleading— Law  Actions,  §§  600-604. 

20.  Attachment  and  Garnishment  in  Law  Actions,  §§  610-642. 

21.  Process — Law  Actions,  §§  650-658. 

22.  Defensive  Pleadings — Law  Actions,  §§  670-676.  / 

23.  Continuances  and  Adjournments,  §§  690-696. 

24.  Miscellaneous  Incidental  Matters — Consolidation — Discovery  at  Law — Dis- 

missal— Verification — Oaths — Acknowledgments,    §§    710-714. 

25.  Trial  of  Law  Actions,  §§  730-749. 

26.  Verdict — Motion  for  New  Trial — Bill  of  Exceptions,  §§  760-766. 

27.  Judgment  and  Executions — Law  Actions,  §§  780-804. 

28.  Appellate  Procedure — Law  Actions,  §§  820-845. 

29.  A  Suit  in  Equity — Summary,  §§  860-879. 

30.  The  Bill  in  Equity,  §§  890-900. 

31.  Process — Equity  Suits,  §§  910-919. 

vii 


Vlll  TABLE    OF    CONTENTS 

CHAPTER 

32.  Decree  Pro  Confesso,  §§  930-937. 

33.  Defensive  Pleadings — Equity  Suits,  §§  950-958. 

34.  The  Answer— Equity  Suits,  §§  970-983. 

35.  Trial  of  Equity  Suits,  §§  1000-1012. 

36.  Masters  in  Chancery,  §§  1030-1034. 

37.  Receivers  and  Injunctions,  §§  1051-1074. 

38.  Decree— Equity  Suits,  §§  1080-1083. 

39.  Appellate  Jurisdiction  Supreme  Court,  §§  2000-2021. 

40.  Appellate  Jurisdiction  C.  C.  A.,  §§  2030-2037. 

41.  Appellate  Procedure— Equity  Suits,   §§  2050-2091. 

42.  Criminal  Procedure,  §§  2100-2167. 

43.  Extradition,  §§  2180-2197. 

44.  Habeas  Corpus,  §§  2200-2212. 

45.  Miscellaneous  Provisions,  §§  2220-2243. 

46.  Court  of  Customs  Appeal,  §§  2250-2261. 

47.  Court  of  Claims,  §§  2300-2332. 

48.  Circuit  Court  of  Appeals,  §§  2400-2409. 

49.  Supreme  Court,  §§  2450-2459. 

APPENDIX. 

1.  Judicial  Code  in  force  January  1,  1912. 

2.  Supreme  Court  Rules. 

3.  Circuit  Courts  of  Appeals  Rules. 

4.  Equity  Rules  in  force  February  1,  1913.  Annotated. 


MONTGOMERY'S    MANUAL    OF 
FEDERAL    PROCEDURE. 


CHAPTER  1. 

FEDERAL  COURTS  AND  THEIR  JURISDICTION  IN  GENERAL. 

Sec. 

1.  The  Place  of  the  Federal  Courts  in  Our  Judicial  System. 

2.  Judicial  Power  under  the  United  States  Constitution. 

3.  Federal  Courts  Enumerated. 

4.  District  Courts — Jurisdiction — In  General. 

5.  The  Federal  System  Is  Double — Legal  and  Equitable. 

•6.  Differences  in  Procedure  at  Law  and  in  Equity  in  the  Federal  Courts. 

7.  Actions  at  Law — Wherein  Conform  to  State  Practice. 

8.  A  Suit  in  Equity — Rules  Governing  Procedure. 

9.  A  Blended  Federal  Procedure  a  Future  Possibility. 

10.  Summary — Differences  of  Practice  and  Procedure  in  Federal  and  State 

Courts. 

11.  Why  a  Special  Study  of  Federal  Procedure  Required. 

12.  Desirability   of   Special   Study   of    Federal   Procedure. 

§  1.  The  Place  of  the  Federal  Courts  in  Our  Judicial 
System.  In  framing  the  national  Constitution  the  theory  pre- 
vailed that  the  national  government  should  have  only  such  powers 
as  were  expressly  given  by,  or  necessarily  implied  from,  the  Con- 
stitution, and  that  all  other  sovereign  powers  were  retained  by 
the  several  states. 

This  theory  prevailed  in  providing  for  the  national  judiciary. 
Each  state  had  its  own  system  of  courts.  These  courts  had  a 
general  jurisdiction  over  persons  and  things  within  their  terri- 
torial limits.  It  was  determined  that  this  jurisdiction  be  kept 
intact,  except  where  the  national  courts  should  be  given  control, 
expressly  or  by  necessary  implication. 

In  the  nature  of  things,  controversies  arising  under  the  Federal 
Constitution,  laws,  and  treaties,  should  be  determinable  in  a  na- 
tional court  of  last  resort.  The  establishment  of  such  court 
insured  uniformity  of  decision  and  gave  national  sanction  thereto. 

Montg.— 1. 


2  MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE        §  2 

The  same  considerations  apply  to  cases  affecting  ambassadors, 
other  public  ministers  and  consuls,  admiralty  and  maritime  cases, 
and  controversies  to  which  the  United  States  or  states  might  be 
parties. 

As  a  result  of  the  doctrine  of  state  sovereignty,  which  flourished 
so  strongly  when  our  Constitution  was  adopted,  there  also  existed 
a  necessity  for  an  impartial  tribunal  of  national  authority  to  de- 
termine controversies  involving  diverse  citizenship.  This  neces- 
sity still  exists  because  of  the  natural  tendency  to  favor  a  citizen 
opposing  a  nonresident,  particularly  if  his  opponent  be  a  foreign 
corporation. 

The  framers  of  the  Constitution  provided  for  such  a  court  of 
last  resort,  and  wisely  left  the  development  of  a  system  of  inferior 
courts  to  be  determined  by  Congress  as  expediency  might  require. 

§  1,  art.  3,  U.  8.  Const.  "The  judicial  power  of  the 
United  States  shall  be  vested  in  one  Supreme  Court  and  in 
such  inferior  courts  as  Congress  may  from  time  to  time 
establish." 

Generally  speaking,  the  place  of  the  Federal  courts  in  our  two- 
fold judicial  system — Federal  and  state — is  (1)  to  give  uniform- 
ity and  national  dignity  to  the  determination  of  Federal  or  na- 
tional questions,  and  (2)  to  furnish  impartial  tribunals  in  cases 
of  diverse  citizenship. 

§  2.  Judicial  Power  under  the  United  States  Constitution. 
The  Constitution  in  defining  the  judicial  power  of  the  Federal 
courts  recognized  both  classes  of  cases  mentioned  in  the  preceding 
section,  (1)  those  involving  Federal  questions  and  national  dig- 
nity, and  (2)  those  where  there  might  be  a  diversity  of  citizenship. 

Cl.  1,  §  2,  art.  S,  U.  S.  Const.  "The  judicial  power  shall 
extend  to  all  cases  in  law  and  equity  arising  under  this  Con- 
stitution, the  laws  of  the  United  States,  and  treaties  made, 
or  which  shall  be  made,  under  their  authority,  to  all  cases 
affecting  ambassadors,  other  public  ministers,  and  consuls ; 
to  all  cases  of  admiralty  and  maritime  jurisdiction ;  to  con- 
troversies to  which  the  United  States  shall  be  a  party;  to 
controversies  between  two  or  more  states;  between  citizens 


§    3  FEDERAL  COURTS  AND  THEIR  JURISDICTION  3 

of  different  states ;  between  citizens  of  the  same  state  claim- 
ing lands  under  grants  of  different  states,  and  between  a 
state,  or  the  citizens  thereof,  and  foreign  states,  citizens  or 
subjects." 

On  account  of  the  tender  consideration  of  states'  rights,  the 
above  provision  was  modified  by  the  llth  Amendment  to  the  Con- 
stitution as  follows: 

"The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity  commenced 
or  prosecuted  against  one  of  the  United  States  by  citizens 
of  another  state,  or  by  citizens  or  subjects  of  any  foreign 
state." 

§  3.  Federal  Courts  Enumerated.  District  courts.  Each 
state  in  the  United  States  constitutes  one  or  more  Federal  judicial 
districts  in  each  of  which  is  located  a  Federal  district  court.  These 
courts  are  the  courts  of  general,  original  jurisdiction.  The  con- 
sideration of  their  jurisdiction,  practice,  and  procedure  occupies 
the  first  and  larger  part  of  this  book.  The  other  inferior  and  appel- 
late courts  are  treated  respectively  in  separate  chapters  devoted 
to  each. 

The  court  of  claims.,  with  five  judges,  sits  at  Washington  to 
take  jurisdiction  of  claims  against  the  United  States  other  than 
pensions  and  sounding  in  tort. 

The  commerce  court,  with  five  judges,  sits  at  Washington  and 
may  sit  in  other  places.  It  has  authority  to  enforce  orders  (ex- 
cept for  payment  of  money)  of  the  Interstate  Commerce  Commis- 
sion, but  not  by  forfeitures,  penalties,  or  criminal  remedies.  It 
also  has  power  to  enjoin,  annul,  or  suspend  orders  of  said  Com- 
mission. By  the  urgent  deficiencies  appropriations  act  of  October 
22,  1913,  38  Stat.  at  L.  pp.  219,  221,  quoted  in  our  Appendix, 
at  the  head  of  chapter  9,  Judicial  Code,  the  commerce  court  was 
abolished,  and  its  jurisdiction  transferred  to  the  district  court. 

The  court  of  customs  appeals,  with  five  judges,  sits  at  Wash- 
ington and  may  also  sit  in  the  several  circuits.  It  reviews  de- 
cisions of  the  board  of  general  appraisers  under  the  customs  and 
duties  or  tariff  laws. 

The  circuit  court  of  appeals  consists  of  three  or  more  judges 


4  MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE        §  4 

for  each  circuit.  A  justice  of  the  supreme  court  is  also  assigned 
to  each  circuit,  and  district  judges  may  be  assigned  to  sit.  These 
courts  have  final  appellate  jurisdiction  over  the  district  courts 
within  their  respective  circuits,  except  where  a  direct  appeal  ia 
allowed  exclusively  to  the  supreme  court  or  on  certification  of  a 
question  from  the  circuit  court  of  appeals  to  the  supreme  court. 
The  supreme  court,  with  nine  judges,  sits  at  Washington.  It 
has  original  jurisdiction  of  matters  in  which  a  state  is  a  party, 
and  of  cases  brought  by  ambassadors  or  other  public  ministers 
or  in  which  a  consul  or  vice  consul  is  a  party.  It  has  original 
and  exclusive  jurisdiction  of  cases  between  states  and  between 
a  state  and  the  United  States,  and  of  cases  against  ambassadors, 
other  public  ministers,  and  their  domestics.  It  has  appellate  juris- 
diction on  writ  of  error  or  appeal  from  the  district  courts  in 
certain  cases,  and  on  writ  of  error  from  the  courts  of  last  resort 
of  the  several  states  in  certain  cases.  It  has  appellate  jurisdic- 
tion of  certain  cases  from  the  circuit  court  of  appeals,  court 
of  claims,  commerce  court,  from  United  States  district  court 
and  supreme  court  of  Porto  Rico,  the  supreme  court  of  Hawaii, 
district  court  of  Alaska,  the  supreme  court  of  the  Philippine 
Islands,  the  court  of  appeals  of  the  District  of  Columbia,  and 
certain  cases  where  a  territory  has  become  a  state. 

§  4.  District  Courts — Jurisdiction — In  General.  Although 
the  jurisdiction  of  the  Federal  courts  is  limited,  the  number  and 
importance  of  cases  involving  some  ground  of  Federal  jurisdiction 
is  considerable  and  is  constantly  increasing. 

By  the  Judicial  Code  which  took  effect  January  1,  1912,  the 
United  States  circuit  courts  were  abolished  and  the  district 
courts  were  made  the  Federal  courts  of  general,  original  juris- 
diction. 

As  one  or  more  of  these  Federal  district  courts  is  located  in 
every  state  in  the  United  States,  the  general  practitioner  should 
be  concerned  with  the  scope  of  its  jurisdiction  and  mode  of  pro- 
cedure. (1)  Such  court  may  be  available  to  him  as  the  best  or 
most  convenient  court  in  which  to  bring  a  suit;  (2)  it  may  inter- 
fere with  the  trial  of  a  case  brought  by  him  in  the  state  court  by 
his  adversary's  removal  of  the  case  thereto;  (3)  on  account  of  the 


§    5  FEDERAL   COURTS   AND   THEIR   JURISDICTION  5 

locality  or  bias  of  a  state  court,  the  practitioner  may  find  it 
desirable  to  remove  the  suit  for  a  defendant  to  the  Fed- 
eral court;  (4)  he  may  be  called  upon  to  defend  a  suit  brought 
in  the  Federal  court;  (5)  he  may  be  employed  to  pass  upon  a  title 
litigated  in  the  Federal  courts. 

The  original  jurisdiction  of  the  Federal  district  court  is  defined 
in  §  24  of  the  Judicial  Code.  Part  of  that  jurisdiction  is  ex- 
clusive of  the  state  courts  as  coming  under  the  provision  of  §  256 
of  the  Judicial  Code,  and  part  is  concurrent  with  that  of  the 
state  courts;  and  in  all  cases  of  original  concurrent  jurisdiction 
the  suit,  if  brought  in  the  state  court,  may  be  removed  under 
certain  conditions  to  the  Federal  district  court  for  the  proper  dis- 
trict. These  subjects  are  treated  in  chapter  6,  entitled,  "District 
Court — Jurisdiction,  Original  and  Appellate,"  and  in  chapter  10, 
entitled,  "Removal  of  Causes — Jurisdiction  and  Procedure." 

§  5.  The  Federal  System  Is  Double — Legal  and  Equitable. 
In  the  Federal  courts  there  are  two  systems  of  pleadings  and 
practice,  viz..,  law  and  equity.  The  same  judge  may  sit  at 
one  time  as  a  law  judge  and  try  a  case,  with  a  jury  to  deter- 
mine questions  of  fact,  and  at  another  time  he  may  sit  as  a 
chancellor  or  equity  judge  determining  the  questions  of  law  and 
fact  without  a  jury,  unless  he  calls  one  in  an  advisory  capacity. 
As  an  equity  judge  he  will  not  give  an  equitable  remedy  if  the 
remedy  at  law  is  adequate,  but  under  new  Equity  Rule  22,  he  may 
transfer  the  case  to  the  law  side,  if  improperly  brought  on  the 
equity  side,  instead  of  dismissing  as  formerly. 

The  Federal  Constitution,  in  various  provisions,  recognizes  and 
fixes  the  distinction  between  common  law  and  equity,  especially 
in  the  7th  Amendment,  preserving  the  right  of  trial  by  jury  in  suits 
at  common  law  where  the  value  in  controversy  shall  exceed  $20. 

This  double  system  was  inherited  from  England,  where  former- 
ly there  were  separate  courts  of  law  and  equity,  with  a  chancellor 
or  equity  judge  sitting  on  the  equity  bench  and  a  common-law 
judge  on  the  common-law  bench. 

In  most  of  the  states  to-day  the  same  form  of  action  is  used  in 
an  equity  case  as  in  a  law  case  and  the  system  is  a  blending  of  law 
and  equity.  But  the  main  distinctions  between  law  and  equity 


G  MONTGOMERY'S  MANUAL  OF  FEDERAL,  PROCEDURE       §  7 

are  nevertheless  maintained:  (1)  Preserving  the  right  to  trial 
by  jury  in  law  cases;  (2)  refusing  to  give  equitable  remedies 
where  the  legal  remedies  of  possession  or  compensation  are  ade- 
quate; and  (3)  enforcing  equitable  decrees  in  certain  cases  by 
process  for  contempt  for  neglect  or  refusal  to  obey. 

The  reason  for  the  original  separation  of  the  two  systems  is 
historical  and  not  in  the  essential  nature  of  these  branches  of  the 
law,  but  the  distinction  will  remain  an  essential  element  of  our 
system,  even  in  the  blended  or  reform  procedure,  so  long  as  the 
right  to  trial  by  jury  is  preserved  for  common  law  cases. 

§  6.  Differences  in  Procedure  at  Law  and  in  Equity  in 
the  Federal  Courts.  In  the  Federal  courts  an  action  at  law  dif- 
fers from  a  suit  in  equity  in  a  number  of  particulars,  in  the  main 
as  follows: 

(1)  Pleading:  at  law,  conforms  "as  near  as  may  be"  to  state 
practice;  in  equity  is  governed  by  equity  rules.  (2)  Production 
of  proof:  at  law,  depositions  may  be  taken  at  any  time  after  filing 
the  complaint  to  the  time  of  trial ;  in  equity,  as  a  general  rule  only 
after  issue  joined  and  within  a  limited  time.  (3)  Trial:  at  law, 
defendant  entitled  to  a  jury  to  determine  issues  of  fact ;  in  equity, 
issues  both  of  law  and  fact  are  determined  by  the  judge.  (4)  Re- 
lief granted:  at  law,  compensation  or  possession;  in  equity,  pre- 
ventive, specific,  foreclosure,  receiverships  and  all  other  remedies 
except  legal,  but  including  compensation  and  possession  as  inci- 
dental to  the  equitable  relief  sought.  Equitable  remedies  are  not 
given  where  legal  remedies  are  adequate  and  complete.  (5)  En- 
forcing final  orders:  a  judgment  at  law  is  enforceable  by  execution 
and  writ  of  assistance;  equitable  decree  by  execution  for  money 
judgments,  by  contempt  proceedings  for  specific  or  preventive 
relief  when  necessary  under  Equity  Rule  8,  and  writ  of  assistance 
for  possession  under  Equity  Rule  9.  (6)  Review  in  appellate 
court:  at  law  by  writ  of  error;  in  equity  by  appeal. 

§  7.  Actions  at  Law — Wherein  Conform  to  State  Prac- 
tice. Generally  speaking,  an  action  at  law  is  an  action  wherein 
is  sought  the  remedy  of  possession  or  compensation  without  any 
equitable  elements  requiring  the  interposition  of  equity. 


§    9  FEDERAL  COURTS  AND  THEIR  JURISDICTION  7 

Under  §§  914  et  seq.,  K.  S.,  Comp.  Stat.  1901,  p.  684,  4 
F.  S.  A.  563,  the  conduct  of  an  action  at  law  conforms  "as  near 
as  may  be"  to  that  existing  at  the  time  in  like  causes  in  the  courts 
of  record  of  the  state  within  which  such  district  court  is  held. 

Pleading  and  practice  in  a  law  case  in  the  Federal  courts  are 
governed  by  the  state  statutes  and  state  court  rules,  except  in  those 
matters  where  there  has  been  congressional  action  by  statutory  en- 
actments, or  which  involve  the  judge's  personal  administrative 
powers,  or  where  the  Federal  district  court  rules  have  established 
such  minor  changes  as  the  difference  in  jurisdiction  and  organ- 
ization of  the  state  or  Federal  courts  may  require. 

In  addition  to  a  good  cause  of  action  there  must  always  be  an 
affirmative  showing  (1)  of  grounds  of  Federal  jurisdiction;  (2) 
that  the  requisite  amount  in  controversy  is  involved,  which  in 
cases  of  concurrent  jurisdiction  with  the  state  courts,  must  exceed, 
exclusive  of  interest  and  costs,  the  sum  or  value  of  $3,000,  ex- 
cept in  certain  cases  set  out  §  24,  Judicial  Code ;  ( 3 )  that  the  ac- 
tion is  one  at  law  as  distinguished  from  equity;  and  it  must  also 
appear,  (4)  that  the  venue  of  the  action  is  properly  laid  under 
the  Federal  statutes. 

§  8.  A    Suit    in    Equity — Rules    Governing    Procedure. 

Suits  in  equity  are  governed  by  the  equity  rules  promulgated  by 
the  United  States  Supreme  Court,  with  such  minor  variations  not 
inconsistent  with  those  rules  as  the  district  judges,  with  the 
concurrence  of  a  majority  of  the  circuit  judges  for  the  circuit,  may, 
from  time  to  time,  establish  under  Equity  Kule  79. 

In  a  suit  in  equity,  as  in  an  action  at  law,  regard  must  be  paid 
to  (1)  the  ground  of  Federal  jurisdiction,  (2)  that  there  is  the 
requisite  amount  in  controversy,  (3)  that  the  cause  is  equitable  as 
distinguished  from  legal,  (4)  and  the  proper  venue. 

§  9.  A  Blended  Federal  Procedure  a  Future  Possibility. 

Considering  the  simple  practice  and  procedure  established  for 
suits  in  equity  by  the  equity  rules  that  went  into  effect  February 
1,  1913,  there  seems  to  be  no  good  reason  why  there  should  be 
maintained  any  differences  between  actions  at  law  and  suits  in 
equity  in  the  Federal  courts,  if  Congress  should  see  fit  to  amend 


8  MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  10 

§  914,  Revised  Statutes,  so  as  to  allow  the  procedure  at  law  to  be 
governed  by  Supreme  Court  rules. 

Very  few  rules  would  be  required  for  a  law  action  additional 
to  those  now  existing  for  the  conduct  of  a  suit  in  equity.  It 
would  be  necessary  to  make  provision  (1)  to  preserve  the  right 
of  a  jury  trial  for  questions  of  fact  in  law  actions;  (2)  to  adjust 
the  giving  of  equitable  remedies  and  legal  remedies  in  the  same 
suit  or  separate  suits  determinable  at  the  same  time;  and  (3)  to 
provide  for  the  enforcement  of  state  statutory  remedies  wherein 
same  may  not  be  conformable  to  the  Federal  practice.  The  adop- 
tion of  such  a  system  would  be  a  strong  influence  towards  uniform- 
ity and  simplicity  in  state  systems. 

§  10.  Summary — Differences  of  Practice  and  Procedure 
in  Federal  and  State  Courts.  The  differences  between  Federal 
and  state  practice  and  procedure  are  due:  (1)  to  the  limited 
nature  of  Federal  jurisdiction  requiring  (a)  some  ground  of  Fed- 
eral jurisdiction  to  be  involved  in  all  actions  in  the  Federal  court, 
and  (b)  that  in  certain  cases  the  amount  in  controversy  must 
exceed  $3,000  exclusive  of  interest  and  costs;  (2)  to  the  dis- 
tinctions maintained  in  Federal  courts  between  actions  at  law  and 
suits  in  equity;  (3)  to  the  Federal  statutes  relating  to  venue. 

It  will  be  seen  from  the  above  that  there  are  always  four  points- 
for  consideration  in  determining  the  jurisdiction  and  consequent 
procedure  in  actions  brought  in  Federal  courts. 

First,  whether  or  not  a  Federal  ground  of  jurisdiction  is  in- 
volved, because  some  such  ground  must  appear  in  addition  to  the 
facts  necessary  generally  to  constitute  a  cause  of  action.  These 
grounds  of  Federal  jurisdiction  are  treated  in  chapters  7  and  8, 
respectively  entitled,  "Federal  Questions — Ground  of  Jurisdic- 
tion;" "Diverse  Citizenship — Ground  of  Federal  Jurisdiction." 

Second,  whether  or  not  there  is  the  requisite  amount  in  con- 
troversy. Congress,  having  power  in  its  discretion  to  establish 
inferior  courts,  necessarily  has  power  to  define  their  jurisdiction. 
In  defining  the  jurisdiction  of  the  district  court,  the  Federal  stat- 
utes have  fixed  a  limitation  based  on  the  amount  in  controversy. 
This  subject  is  treated  in  chapter  9,  entitled,  "Amount  in  Con- 
troversy as  Affecting  Jurisdiction." 


§    11  FEDERAL  COURTS  AND   THEIR  JURISDICTION  9 

Third,  whether  or  not  the  suit  is  at  law  or  in  equity.  A  sepa- 
rate system  of  procedure  has  been  rendered  necessary  in  Federal 
equity  suits,  because  a  number  of  states  have  adopted .  a  blended 
form  of  procedure,  combining  legal  and  equitable  causes  of  action 
and  defenses,  while  the  Federal  system  has  maintained  the  dis- 
tinctions between  law  and  equity.  Under  the  Federal  practice, 
legal  and  equitable  causes  are  not  permitted  to  be  united  in  the 
same  suit,  nor  are  equitable  defenses,  except  in  a  few  cases,  per- 
mitted to  be  set  up  in  law  actions.  Chapters  18  to  28  inclusive 
give  the  main  proceedings  for  an  action  at  law  in  the  Federal 
court,  and  chapters  29  to  41  inclusive  give  the  procedure  for  a  suit- 
in  equity  in  the  Federal  court. 

Fourth,  certain  restrictions  have  been  adopted  in  the  Federal 
courts  respecting  the  place  of  trial  of  actions,  or  venue.  These 
restrictions  are  not  jurisdictional  if  waived  by  the  parties,  but 
may  defeat  the  action.  On  removal,  timely  objection  on  this 
ground  may  cause  the  case  to  be  remanded.  This  subject  is  treated 
in  chapter  5,  entitled,  "Venue  of  Actions  in  the  District  Court 
— Territorial  Jurisdiction." 

The  statutory  provisions  respecting  jurisdiction,  original  and 
on  removal,  the  amount  or  value  required  to  be  in  controversy  and 
the  place  of  trial  of  actions,  are  summarized  under  the  several 
jurisdictional  headings  of  §  24,  Judicial  Code,  and- placed  in  chap- 
ter .12,  entitled,  "Summaries — Original  Jurisdiction,  Removal, 
Amount,  Venue — for  the  Several  Matters  of  District  Court  Cog- 
nizance." 

§11.  Why  a  Special  Study  of  Federal  Procedure  Re- 
quired. Federal  equity  procedure  is  now  wonderfully  simplified 
under  the  equity  rules  which  took  effect  February  1,  1913,  and 
the  Judicial  Code  which  took  effect  January  1,  1912. 

There  will  be  but  little  difficulty  in  mastering  the  present  equity 
procedure,  if  the  practitioner  will  bear  in  mind  the  points  men- 
tioned in  the  preceding  section  respecting  jurisdiction,  Federal 
and  equitable,  amount  in  controversy  and  venue. 

But  special  study  of  the  subject  is  required  because  the  Fedrnil 
equity  procedure  is  a  complete,  separate  system  differing  in  many 
vital  particulars  from  state  systems. 


10          MONTGOMERY'S  MANUAL  OF  FEDERAL,  PROCEDURE      §  12 

In  chapter  29,  entitled,  "A  Suit  in  Equity — Summary,"  are  set 
out  the  main  points  in  the  conduct  of  a  suit  in  equity  and  the  time 
within  which  each  step  must  be  taken. 

For  an  action  at  law  in  the  Federal  court,  the  practitioner  must 
search  out  those  matters  wherein  the  Federal  statutes,  Federal 
court  rules  and  decisions  have  changed  the  mode  of  procedure 
from  that  in  the  state  court. 

In  chapter  18,  post,  "An  Action  at  Law — Summary,"  it  is 
endeavored  to  indicate  the  main  points  in  conformity  and  those 
not  in  conformity  with  state  practice. 

§  12.  Desirability  of  Special  Study  of  Federal  Procedure. 

The  number  of  cases  coming  under  Federal  jurisdiction,  particu- 
larly the  concurrent  jurisdiction  of  the  Federal  district  court,  is 
greatly  increasing  with  the  consolidation  and  combination  of 
businesses  and  with  the  growth  of  national  control  of  matters 
formerly  left  to  state  legislation. 

Time  devoted  to  the  study  of  Federal  jurisdiction  and  procedure 
will  be  well  spent  in  view  of  the  strong  tendency  toward  national 
control  of  numerous  matters  affecting  the  different  business  inter- 
ests in  every  community. 

A  special  study  of  Federal  procedure  is  required  if  the  lawyer 
desires  to  be  equipped  to  handle  business  of  importance.  The 
larger  the  interests  involved,  the  greater  liability  there  is  of  such 
matters  being  in  litigation  in  the  Federal  rather  than  the  state 
court,  either  by  being  brought  there  originally,  or  on  removal. 
The  necessity  is  undoubtedly  increasing  for  the  state  practitioner 
to  become  conversant  with  the  judicial  system,  jurisdiction  and 
procedure  not  only  of  his  own  state  (and  to  some  extent  of  other 
states),  but  also  of  the  nation. 


CHAPTEK  2. 

DISTRICT   COURTS— ORGANIZATION— OFFICERS. 

Sec. 

20.  General  Statement. 

21.  Judges — General  Statement. 

22.  Number  of  District  Judges  in  the  Several  Districts. 

23.  Division  of  Business  in  Districts  with  More  than  One  Judge. 

24.  Assigning  Another  District  Judge  in  Case  of  Disability  of  Regular  Judge. 

25.  Assigning  Additional  Judge  in  Case  of  Accumulation  of  Business  or  in 

Aid  of  District  Judge. 

26.  Designation  of  Additional  Judge  by  Chief  Justice. 

27.  Change   of   Appointment. 

28.  Circuit  Judge,  When  to  Act  as  District  Judge. 

29.  Duties   aoid   Powers   of   Judges   Designated   in   Place   or   Aid   of   District 

Judges. 

30.  Outside  Judge  in  Case  of  Interest  or  Relationship  of  Incumbent. 

31.  Designation  of  Another  Judge  on  Affidavit  of  Personal  Bias  or  Prejudice 

of  Incumbent  Filed. 

32.  Clerks,  Marshals,  District  Attorneys — General  Statement. 

33.  Clerks. 

34.  Deputy  Clerks. 
3f>.  Marshals. 

3(5.  Deputy  Marshals. 

37.  Marshal's  Field  Deputies. 

38.  Criers   and   Bailiii's. 

39.  United  States  District  Attorney. 

40.  Assistant  District  Attorney. 

41.  Court   Commissioners,    Receivers,   Masters   in    Chancery — General    State- 

ment. 

42.  Court  Commissioners. 

§  20.  General  Statement.  In  every  state  in  the  United 
States  there  is  at  least  one  Federal  judicial  district1  with  not  less 
than  one  district  judge  for  each  district  except  in  Alabama,  Mis- 
sissippi, South  Carolina,  and  Tennessee.8 

Besides  the  judge,  there  are :  a  clerk,  deputy  clerks,  a  marshal, 
deputy  marshals,  field  deputy  marshals,  bailiffs,  court  crier,  a 

1  Ch.   4.  »  §  22. 

11 


12          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  22 

district  attorney,  assistant  district  attorneys,  and  sometimes  coun- 
sel to  aid  the  district  attorney.8 

There  are  also  court  commissioners,  receivers,  masters  in  chan- 
cery, and  officers  appointed  under  the  bankruptcy  laws  not  covered 
in  this  work.4 

§  21.  Judges — General  Statement.  Except  in  Alabama, 
Mississippi,  South  Carolina,  and  Tennessee,  there  is  always  at 
least  one  district  judge  for  every  district.5  Sometimes  there  is 
more  than  one  judge,  in  which  case  it  is  necessary  that  there  be  a 
division  of  business.6 

Often  it  is  necessary  to  call  in  outside  district  judges  in  case 
of  disability  of  regular  judge,7  or  accumulation  of  business,  or 
when  otherwise  necessary  to  aid  a  district  judge.8  In  some 
cases  the  chief  justice  may  be  required  to  designate  such  addi- 
tional judge,9  or  a  new  appointment  and  revocation  of  the  old 
appointment  may  be  required.10  In  some  cases  it  may  even  be 
necessary  to  call  in  one  of  the  circuit  judges  to  serve  as  district 
judge.11 

It  is  also  often  necessary  to  obtain  an  outside  judge  where  the 
incumbent  is  interested  or  related  to  the  parties,12  or  where  he  has 
a  personal  bias  or  prejudice.18 

Where  an  outside  judge  serves,  his  acts  have  the  same  effect 
and  validity  as  those  of  the  district  judge  of  the  district.14 

§  22.  Number  of  District  Judges  in  the  Several  Districts. 
§  1,  Judicial  Code,*  36  Stat.  at  L.  1081,  Comp.  St.  1911, 
p.  129,1912  Supp.  F.S.A.v.l,p.  132.  "In  each  of  the  dis- 
tricts described  in  chapter  5,15  there  shall  be  a  court  called 
a  district  court,  for  which  there  shall  be  appointed  one  judge, 
to  be  called  a  district  judge ;  except  that  in  the  northern  dis- 

3§  32.  4§  41.  »§  22.  6§  23. 

7§  24.  «§  25.  »§  26.  l°§  27. 

11  §  28.  12  §  30.  13  §  31.  l*  §  29. 

15  Ch.  4,  post. 

a  "All  acts  and  parts  of  acts  authorizing  the  appointment  of  United  States 
circuit  or  district  judges,  .  .  .  enacted  prior  to  February  first,  nineteen 
hundred  and  eleven,"  repealed  by  §  297,  Judicial  Code.  Circuit  courts 
abolished  by  §  289  of  the  Judicial  Code.  Judicial  Code  does  not  repeal  expe- 
dition act  of  Feb.  11.  1903,  32  Stat.  at  L.  823,  Comp.  St.  1911,  p.  1383,  10  F.  S. 
A.  199.  Ex  parte  United  States,  226  U.  S.  420,  57  L.  ed.  281,  33  Sup.  Ct.  Rep.  170. 


§    24  DISTRICT   COURTS ORGANIZATION OFFICERS  13 

trict  of  California,  the  northern  district  of  Illinois,  the  dis- 
trict of  Maryland,  the  district  of  Minnesota,  the  district  of 
Nebraska,  the  district  of  New  Jersey,  the  eastern  district 
of  New  York,  the  northern  and  southern  district  of  Ohio,  the 
district  of  Oregon,  the  eastern  and  western  district  of  Penn- 
sylvania, and  the  western  district  of  Washington,  there  shall 
be  an  additional  district  judge  in  each,  and  in  the  southern 
district  of  New  York,  three  additional  district  judges :  Pro- 
vided, That  whenever  a  vacancy  shall  occur  in  the  office  of  the 
district  judge  for  the  district  of  Maryland,  senior  in  commis- 
sion, such  vacancy  shall  not  be  filled,  and  thereafter  there 
shall  be  but  one  district  judge  in  said  district:  Provided 
further,  That  there  shall  be  one  judge  for  the  eastern  and 
western  districts  of  South-  Carolina,  one  judge  for  the 
eastern  and  middle  districts  of  Tennessee,  and  one  judge  for 
the  northern  and  southern  districts  of  Mississippi :  Provided 
further,  That  the  district  judge  for  the  middle  district  of 
Alabama  shall  continue  as  heretofore  to  be  a  district  judge 
for  the  northern  district  thereof.  Every  district  judge  shall 
reside  in  the  district  or  one  of  the  districts  for  which  he  is 
appointed,  and  for  offending  against  this  provision  shall  be 
deemed  guilty  of  a  high  misdemeanor." 

§  23.  Division  of  Business  in  Districts  with  More  than 
One  Judge. 

§  28,  Judicial  Code*  36  8 tat.  at  L.  1090,  Comp.  St.  1911, 
p.  134,  1912  Supp.  F.  8.  A.  i\  l,p.  138.  "In  districts  having 
more  than  one  district  judge,  the  judges  may  agree  upon  the 
division  of  business  and  assignment  of  cases  for  trial  in  said 
district;  but  in  case  they  do  not  so  agree,  the  senior  circuit 
judge  of  the  circuit  in  which  the  district  lies  shall  make  all 
necessary  orders  for  the  division  of  business  and  the  assign- 
ment of  cases  for  trial  in  said  district." 

§  24.  Assigning  Another  District  Judge  in  Case  of  Dis- 
ability of  Regular  Judge. 

§13,  Judicial  Code*  36  8  tat.  at  L.  1089,  Comp.  St.  1911, 
p.  131, 1912  Supp.  F.  S.  A.  v.  1,  p.  135.  "When  any  district 
judge  is  prevented,  by  any  disability,  from  holding  any  stated 

*  Drawn  from  act  of  Feb.  20,  1907,  ch.  2073,  §  2;  Act  of  March  2,  1907, 
ch.  2575,  §  2,  34  Stat.  at  L.  1253;  Act  of  March  2,  1909:  and  the  act  of  Feb. 
24,  1910.  ch.  56,  §  3,  36  Stat.  at  L.  202. 

c  Combining  §  591,  R.  S.,  Rose's  Code,  §  172,  Foster's  Fed.  Prac.  4th 
ed.)  pp.  682,  683,  Comp.  St.  1901,  p.  480,  4  F.  S.  A.  675.  and  amendment  there- 


14:          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  25 

or  appointed  term  of  his  district  court,  and  that  fact  is  made 
to  appear  by  the  certificate  of  the  clerk,  under  the  seal  of  the 
court,  to  any  circuit  judge  of  the  circuit  in  which  the  district 
lies,  or,  in  the  absence  of  all  the  circuit  judges,  to  the  circuit 
justice  of  the  circuit  in  which  the  district  lies,  any  such  cir- 
cuit judge  or  justice  may,  if  in  his  judgment  the  public  in- 
terests so  require,  designate  and  appoint  the  judge  of  any 
other  district  in  the  same  circuit  to  hold  said  court,  and  to 
discharge  all  the  judicial  duties  of  the  judge  so  disabled,  dur- 
ing such  disability.  Whenever  it  shall  be  certified  by  any 
such  circuit  judge  or,  in  his  absence,  by  the  circuit  justice 
of  the  circuit  in  which  the  district  lies,  that  for  any  sufficient 
reason  it  is  impracticable  to  designate  and  appoint  a  judge 
of  another  district  within  the  circuit  to  perform  the  duties 
of  such  disabled  judge,  the  chief  justice  may,  if  in  his  judg- 
ment the  public  interests  so  require,  designate  and  appoint 
the  judge  of  any  district  in  another  circuit  to  hold  said  court 
and  to  discharge  all  the  judicial  duties  of  the  judge  so  dis- 
abled, during  such  disability.  Such  appointment  shall  be 
filed  in  the  clerk's  office,  and  entered  on  the  minutes  of  the 
said  district  court,  and  a  certified  copy  thereof  under  the 
seal  of  the  court  shall  be  transmitted  by  the  clerk  to  the  judge 
so  designated  or  appointed." 

§  25.  Assigning  Additional  Judge  in  Case  of  Accumulation 
of  Business  or  in  Aid  of  District  Judge. 

§  14,  Judicial  Code*  36  Stat.  at  L.  1089,  Comp.  St.  1911, 
p.  132,  1912  Supp.  F.  8.  A.  v.  1,  p.  135.  "When,  from  the 
accumulation  or  urgency  of  business  in  any  district  court,  the 
public  interests  require  the  designation  and  appointment  here- 
inafter provided,  and  the  fact  is  made  to  appear,  by  the  certif- 

to,  36  Stat.  at  L.  1417,  1909  Supp.  F.  S.  A.  293,  which  are  repealed  by  §  297, 
Judicial  Code. 

Filing  the  paper  is  not  necessary  to  the  validity  of  the  appointment  of  the 
judge.  National  Home  of  Soldiers  v.  Butler,  33  Fed.  374.  This  power  does 
not  extend  to  the  case  of  a  vacancy.  9  Op.  Atty.  Gen.  131.  See  §  603,  R.  S. 
Appointment  not  subject  to  collateral  attack.  Ball  v.  United  States,  140 
U.  S.  118,  35  L.  ed.  377,  11  Sup.  Ct.  Rep.  761. 

a  Drawn  from  §  592.  R.  S..  dose's  Code,  §  173,  Foster's  Fed.  Prac.  (4th  ed.) 
pp.  682,  683,  Comp.  St.  1901,  p.  481,  4  F.  S.  A.  676,  which  section  is  re- 
pealed by  §  297,  Judicial  Code.  In  general,  McDowell  v.  United  States,  159  U. 
S  596,  40  L.  ed.  271,  16  Sup.  Ct.  Rep.  111.  Not  subject  to  collateral  attack. 
Ex  parte  United  States,  226  U.  S.  420,  57  L.  ed.  281,  33  Sup.  Ct.  Rep.  170. 
See  In  Re  Manning,  139  U.  S.  504,  35  L.  ed.  264,  31  Sup.  Ct.  Rep.  624; 
Ball  v.  United  States,  140  U.  S.  118,  35  L.  ed.  377,  11  Sup.  Ct.  Rep.  761. 
McDowell  v.  United  States,  159  U.  S.  596,  40  L.  ed.  271,  16  Sup.  Ct.  Rep. 
111.  As  to  filing  of  appointment,  see  National  Home  for  Soldiers  v.  Butler, 
33  Fed.  374. 


§    26  DISTRICT    COURTS ORGANIZATION OFFICERS  15 

icate  of  the  clerk,  under  the  seal  of  the  court,  to  any  circuit 
judge  of  the  circuit  in  which  the  district  lies,  or,  in  the  ab- 
sence of  all  the  circuit  judges,  to  the  circuit  justice  of  the  cir- 
cuit in  which  the  district  lies,  such  circuit  judge  or  justice 
may  designate  and  appoint  the  judge  of  any  other  district  in 
the  same  circuit  to  have  and  exercise  within  the  district  first 
named  the  same  powers  that  are  vested  in  the  judge  thereof. 
Each  of  the  said  district  judges  may,  in  case  of  such  appoint- 
ment, hold  separately  at  the  same  time  a  district  court  in  such 
district,  and  discharge  all  the  judicial  duties  of  the  district 
judge  therein." 

§17,  Judicial  Code*  36  Stat.  at  L.  1089,  Comp.  St.  1911, 
p.  133, 1912  Supp.  F.  8.  A.  v.  1,  p.  136.  "It  shall  be  the  duty 
of  the  senior  circuit  judge  then  present  in  the  circuit,  when- 
ever in  his  judgment  the  public  interest  so  requires,  to  desig- 
nate and  appoint,  in  the  manner  and  with  the  powers  provided 
in  section  fourteen,  the  district  judge  of  any  judicial  district 
within  his  circuit  to  hold  a  district  court  in  the  place  or  in 
aid  of  any  other  district  judge  within  the  same  circuit." 

§  26.  Designation  of  Additional  Judge  by  Chief  Justice. 
§  15,  Judicial  Code,*  36  Stat.  at  L.  1089,  Comp.  St.  1911, 
p.  132,  1912  Supp.  F.  8.  A.  v.  1,  p.  136.  "If  all  the  circuit 
judges  and  the  circuit  justice  are  absent  from  the  circuit,  or 
are  unable  to  execute  the  provisions  of  either  of  the  two  pre- 
ceding sections,  or  if  the  district  judge  so  designated  is  dis- 
abled or  neglects  to  hold  the  court  and  transact  the  business 
for  which  he  is  designated,  the  clerk  of  the  district  court  shall 
certify  the  fact  to  the  Chief  Justice  of  the  United  States,  who 
may  thereupon  designate  and  appoint  in  the  manner  afore- 
said the  judge  of  any  district  within  such  circuit  or  within 
any  other  circuit ;  and  said  appointment  shall  be  transmitted 
to  the  clerk  and  be  acted  upon  by  him  as  directed  in  the  pre- 
ceding section." 

e  Superseding  §  596,  R.  S.,  Rose's  Code,  §  177,  Foster's  Fed.  Prac.  (4th 
ed.)  pp.  682,  683,  Comp.  St.  1901,  p.  482,  4  F.  S.  A.  677,  which  section  is 
repealed  by  §  297,  Judicial  Code. 

McDowell  v.  United  States,  159  U.  S.  596,  40  L.  ed.  271,  16  Sup.  Ct.  Rep. 
111.  In  general,  Ball  v.  United  States,  140  U.  S.  118,  35  L.  ed.  377,  11  Sup. 
Ct.  Rep.  761. 

'Superseding  §  593,  R.  S., 'Rose's  Code,  §  174,  Foster's  Fed.  Prac.  (4th 
ed.)  pp.  682,  683,  Comp.  St.  1901,  p.  481,  4  F.  S.  A.  676,  which  section  is  re- 
pealed by  §  297,  Judicial  Code.  In  general,  Ex  parte  N.  K.  Fairbanks  Co.  104 
Fed.  978. 


16          MONTGOMERY'S  MAM  AL  OF  FEDERAL  PROCEDURE      §  28 

§  27.  Change  of  Appointment. 

§  16,  Judicial  Code*  -if;  >'/«/.  at  L.  1089,  Comp.  St.  1911, 
p.  132,  1912  Supp.  F.  S.  A.  v.  1,  p.  130.  "Any  such  circuit 
judge,  or  circuit  justice,  or  the  Chief  Justice,  as  the  case  ma y 
be,  may,  from  time  to  time,  if  in  his  judgment  the  public 
interests  so  require,  make  a  new  designation  and  appointment 
of  any  other  district  judge,  in  the  manner,  for  the  duties,  and 
with  the  powers  mentioned  in  the  three  preceding  sections, 
and  revoke  any  previous  designation  and  appointment." 

§  28.  Circuit  Judge,  When  to  Act  as  District  Judge. 

§  18,  Judicial  Code,11  36  Stat.  at  L.  1089,  Comp.  St.  1911r 
p.  133,1912  Supp.  F.  S.  A.  v.  1,  p.  137.  "Whenever,  in  the 
judgment  of  the  senior  circuit  judge  of  the  circuit  in  which 
the  district  lies,  or  of  the  circuit  justice  assigned  to  such  cir- 
cuit, or  of  the  Chief  Justice,  the  public  interest  shall  require, 
the  said  judge,  or  associate  justice,  or  Chief  Justice,  shall 
designate  and  appoint  any  circuit  judge  of  the  circuit  to  hold 
said  district  court." 

Amendment  of  act  October  3.  1913,  cli.  18,  38  Stat.  (if  L 
203.  §  18  of  the  Judicial  Code  is  amended  by  adding  the 
following:  "Whenever  it  shall  be  certified  by  the  senior 
circuit  judge  of  the  second  circuit,  or,  in  his  absence,  by  the 
circuit  justice  of  said  circuit,  that  on  account  of  the  accumu- 
lation or  urgency  of  business  in  any  district  court  in  said 
circuit  it  is  impracticable  to  designate  and  appoint  a  suffi- 
cient number  of  .district  judges  in  other  districts  within  said 
circuit  to  relieve  such  accumulation  or  urgency  of  business, 
the  Chief  Justice  may,  if  in  his  judgment  the  public  interests 
so  require,  designate  and  appoint  the  judge  of  any  district 
court  in  another  circuit  to  hold  a  district  court  within  said 
second  circuit,  and  to  have  and  exercise  within  said  district 
to  which  he  is  so  assigned  the  same  powers  that  are  vested  in 
the  judge  thereof:  Provided,  That  said  judge  so  designated 
and  appointed  shall  have  consented,  in  writing,  to  such 
designation  and  appointment:  And  provided  further,  That 
the  senior  circuit  judge  of  the  circuit  within  which  such 
judge  so  designated  and  appointed  resides  shall  certify,  in 

« Superseding  §  593,  R.  S.,  Rose's  Code.  §  175,  Foster's  Fed.  Prac.  (4th 
ed.)  pp.  423,  682,  683,  Comp.  St.  1901.  p.  481,  4  F.  S.  A.  676,  which  section  is 
repealed  by  §  297,  Judicial  Code.  In  general,  Ex  parte  N.  K.  Fairbanks 
Co.,  supra. 

h  This  section  is  new  legislation. 


§    30  DISTRICT   COURTS ORGANIZATION OFFICERS  17 

writing,  that  the  business  of  the  district  of  such  judge  will 
not  suffer  thereby.  Such  appointment  shall  be  filed  in  the 
clerk's  office  and  entered  on  the  minutes  of  said  district  court, 
and  a  certified  copy  thereof,  under  the  seal  of  the  court,  shall 
be  transmitted  by  the  clerk  to  the  judge  so  designated  and  ap- 
pointed. Each  of  said  district  judges  may,  in  case  of  such 
appointment,  hold  separately,  at  the  same  time,  a  district 
court  in  such  district,  and  discharge  all  of  the  judicial  duties 
of  the  district  judge  therein." 

§  29.  Duties  and  Powers  of  Judges  Designated  in  Place 
or  Aid  of  District  Judges. 

§  19,  Judicial  Code,1  36  Stat.  at  L.  1090,  Comp.  St.  1911, 
p.  133,  1912  Supp.  F.  8.  A.  v.  1,  p.  137.  "It  shall  be  the 
duty  of  the  district  or  circuit  judge  who  is  designated  and  ap- 
pointed under  either  of  the  six  preceding  sections,  to  dis- 
charge all  the  judicial  duties  for  which  he  is  so  appointed, 
during  the  time  for  which  he  is  so  appointed  ;  and  all  the  acts 
and  proceedings  in  the  courts  held  by  him,  or  by  or  before 
him,  in  pursuance  of  said  provisions,  shall  have  the  same 
effect  and  validity  as  if  done  by  or  before  the  district  judge 
of  the  said  district." 

§  30.  Outside  Judge  in  Case  of  Interest  or  Relationship 
of  Incumbent. 

§  20,  Judicial  Code,*  36  Stat.  at  L.  1090,  Comp.  St.  1911, 
p.  133,  1912  Supp.  F.  S.  A.  v.  1,  p.  137.  "When  it  appears 
that  the  judge  of  any  district  court  is  in  any  way  concerned  in 
interest  in  any  suit  pending  therein,  or  has  been  of  counsel 
or  is  a  material  witness  for  either  party,  or  is  so  related  to  or 
connected  with  either  party  as  to  render  it  improper,  in  his 
opinion,  for  him  to  sit  on  the  trial,  it  shall  be  his  duty,  on 
application  by  either  party,  to  cause  the  fact  to  be  entered 
on  the  records  of  the  court;  and  also  an  order  that  an  au- 
thenticated copy  thereof  shall  be  forthwith  certified  to  the 
senior  circuit  judge  for  said  circuit  then  present  in  the  cir- 
cuit; and  thereupon  such  proceedings  shall  be  had  as  are 
provided  in  section  fourteen  (quoted  §  25,  infra)." 

*  Drawn  from  §  595,  R.  S.,  Rose's  Code,  §  176,  Foster's  Fed.  Prac.  (4th 
ed.)  pp.  682,  683,  Comp.  St.  1901,  p.  482,  4  F.  S.  A.  676,  which  section  is  re- 
pealed by  §  297,  Judicial  Code. 

J  Superseding  §  601,  R.  S.,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  682,  969, 
Comp.  St.  1901,  p.  482,  4  F.  S.  A.  678,  which  section  is  repealed  by  §  297, 
Judicial  Code.  As  to  judge  being  interested  in  suit,  see  Spencer  v.  Lapsley,  61 
Montg. — 2. 


18          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  32 

§  31.  Designation  of  Another  Judge  on  Affidavit  of  Per- 
sonal Bias  or  Prejudice  of  Incumbent  Filed. 

§  21,  Judicial  Code*  36  Stat.  at  L.  1090,  Comp.  St.  1911, 
p.  133,  1912  Supp.  F.  S.  A.  v.  1,  p.  137.  "Whenever  a  par- 
ty to  any  action  or  proceeding,  civil  or  criminal,  shall  make 
and  file  an  affidavit  that  the  judge  before  whom  the  action  or 
proceeding  is  to  be  tried  or  heard  has  a  personal  bias  or  pre- 
judice either  against  him  or  in  favor  of  any  opposite  party 
to  the  suit,  such  judge  shall  proceed  no  further  therein,  but 
another  judge  shall  be  designated  in  the  manner  prescribed 
in  the  section  last  preceding,  or  chosen  in  the  manner  pre- 
scribed in  section  twenty-three  (quoted  §  23,  infra),  to  hear 
such  matter.  Every  such  affidavit  shall  state  the  facts  and 
the  reasons  for  the  belief  that  such  bias  or  prejudice  exists, 
and  shall  be  filed  not  less  than  ten  days  before  the  beginning 
of  the  term  of  the  court,  or  good  cause  shall  be  shown  for  the 
failure  to  file  it  within  such  time.  No  party  shall  be  entitled 
in  any  case  to  file  more  than  one  such  affidavit ;  and  no  such 
affidavit  shall  be  filed  unless  accompanied  by  a  certificate  of 
counsel  of  record  that  such  affidavit  and  application  are  made 
in  good  faith.  The  same  proceedings  shall  be  had  when  the 
presiding  judge  shall  file  with  the  clerk  of  the  court  a  cer- 
tificate that  he  deems  himself  unable  for  any  reason  to  pre- 
side with  absolute  impartiality  in  the  pending  suit  or 
action." 

§  32.  Clerks,  Marshals,  District  Attorneys — General 
Statement.  A  clerk  for  each  district  is  appointed  by  the  judge.16 

Deputy  clerks  are  appointed  by  the  clerks,  by  and  with  the  ap- 
proval of  the  judge.17 

Marshals  for  each  district  are  appointed  by  the  President.18 

Deputy  marshals  are  appointed  by  the  marshal.19 

Field  marshals  may  also  in  some  cases  be  appointed  by  the 
marshal.20 

Bailiffs  not  to  exceed  five  as  the  judge  may  determine  are  ap- 
pointed by  the  marshal.21 

A  court  crier  is  appointed  by  the  court.81 

U.  S.  264.  15  L.  ed.  902.  As  to  judge  showing  partiality,  see  Glasgow  v.  Moyer, 
225  U.  S.  420,  56  L.  ed.  1147,  32  Sup.  Ct.  Rep.  753.  Construed  in  Ex  parte 
N.  K.  Fairbanks  Co.  194  Fed.  978. 

16  §  33.  « §  34.  "  §  35.  19  §  36. 

20  §  37.  21  §  38. 

k  New  legislation.     In  general,  Glasgow  v.  Moyer,  225  U.  S.  420,  56  L.  ed. 


§    33  DISTRICT    COURTS— ORGANIZATION OFFICERS  19 

A  United  States  district  attorney  is  appointed  by  the  Presi- 
dent for  each  district.22 

Assistant  district  attorneys  are  appointed  by  the  Attorney  Gen- 

i    OQ 

eral.23 

Counsel  to  assist  the  District  Attorney  may  be  appointed  by 
the  Attorney  General.22 

Disqualification  for  appointment. 

§  67,  Judicial  Code,1  36  Stat.  at  L.  1105,  Comp.  St.  1911, 
p.  155,  1912  Supp.  F.  S.  A.  v.  1,  p.  159.  "No  person  shall 
be  appointed  to  or  employed  in  any  office  or  duty  in  any  court 
who  is  related  by  affinity  or  consanguinity  within  the  degree 
of  first  cousin  to  the  judge  of  such  court." 

Amendment  Dec.  21,  1911,  37  Stat.  at  L.  46.  "Provided, 
That  no  such  person  at  present  holding  a  position  or  em- 
ployment in  a  circuit  court  shall  be  debarred  from  similar 
appointment  or  employment  in  the  district  court  succeeding 
to  such  circuit  court  jurisdiction." 

§  33.  Clerks. 

§  3,  Judicial  Code,m  36  Stat.  at  L.  1087,  Comp.  St.  1911, 
p.  130,  1912  Supp.  F.  S.  A.  v.  1,  p.  133.  "A  clerk  of  the 
district  court  shall  be  appointed  by  the  judge  thereof,  except 
as  otherwise  provided  by  law." 

The  term  of  the  clerk  is  at  the  will  of  the  district  judge.24 

The  oath  of  the  clerk  is  set  out  in  §  794,  R.  S.,  Comp.  Stat. 
1901,  p.  619,  4  F.  S.  A.  75,  Rose's  Code,  §  570. 

A  bond  is  required  under  §  795,  R.  S.,  Comp.  Stat.  1901,  p. 
619,  4  F.  S.  A.  82,  and  see  §  3,  act  Feb.  22,  1875,  ch.  95,  18 
Stat.  at  L.  333,  Comp.  Stat.  1901,  p.  619,  4  F.  S.  A.  83. 

Additional  bonds  may  be  required,  when  the  business  of  the 
court  makes  necessary,  under  the  provisions  of  §  2,  act  Feb.  22, 

1147,  32  Sup.  Ct.  Rep.  753.  The  mere  filing  of  the  affidavit  does  not  dis- 
qualify the  judge.  Ex  parte  N.  K.  Fairbanks  Co.  194  Fed.  978. 

22  §  39.         23  §  40. 

24  Ex  parte  Hennen   (1839)   13  Pet.   (U.  S.)   230,  10  L.  ed.  138. 

1  Re-enacting  §  7  of  act  of  Aug.  13,  1888,  ch.  866,  25  Stat.  at  L.  437,  Comp. 
St.  1901,  p.  579,  4  F.  S.  A.  69,  which  section  is  repealed  by  §  297,  Judicial  Code. 
See  Elgutter  et  al.  v.  Northwestern  Mut.  Life  Ins.  Co.  86  Fed.  500.  :W 
C.  C.  A.  218. 

m  A  re-enactment  of  §  555,  R.  S.,  Rose's  Code,  §  567,  Comp.  St.  1901,  p.  451, 
4  F.  S.  A.  74,  expressly  repealed  by  §  297,  Judicial  Code. 


20          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  35 

1875,  ch.  95,  18  Stat.  at  L.  333,  Comp.  St.  1901,  p.  620,  4  F.  S. 
A.  S3. 

If  any  clerk  shall  wilfully  refuse  or  neglect  to  make  any  re- 
port, certificate,  statement  or  other  document  required  by  law 
to  be  by  him  made,  he  may  be  removed  by  the  President.  §  5, 
act  Feb.  22,  1875,  ch.  95,  18  Stat.  at  L.  333,  Comp.  St.  1901,  p. 
621,  4  F.  S.  A.  153-4,  Rose's  Code,  §  598. 

For  failure  to  do  as  set  out  in  §  5  there  is  an  additional  pun- 
ishment provided,  §  6  same  act  making  the  neglect  or  refusal  a 
misdemeanor. 

§  34.  Deputy  Clerks. 

§  4,  Judicial  Code?  36  Stat  at  L.  1081,  Comp.  St.  1911, 
p.  ISO,  1912  Supp.  F.  8.  A.  v.  1,  p.  133.  ''Except  as  other- 
wise specially  provided  by  law,  the  clerk  of  the  district  court 
for  each  district  may,  with  the  approval  of  the  district  judge 
thereof,  appoint  such  number  of  deputy  clerks  as  may  be 
deemed  necessary  by  such  judge,  who  may  be  designated  to 
reside  and  maintain  offices  at  such  places  of  holding  court  as 
the  judge  may  determine.  Such  deputies  may  be  removed  at 
the  pleasure  of  the  clerk  appointing  them,  with  the  concur- 
rence of  the  district  judge.  In  case  of  the  death  of  the  clerk, 
his  deputy  or  Deputies  shall,  unless  removed,  continue  in  of- 
fice and  perform  the  duties  of  the  clerk,  in  his  name,  until  a 
clerk  is  appointed  and  qualified ;  and  for  the  default  or  mis- 
feasances in  office  of  any  such  deputy,  whether  in  the  life- 
time of  the  clerk  or  after  his  death,  the  clerk  and  his  estate 
and  the  sureties  on  his  official  bond  shall  be  liable ;  and  his 
executor  or  administrator  shall  have  such  remedy  for  any 
such  default  or  misfeasances  committed  after  his  death  as 
the  clerk  would  be  entitled  to  if  the  same  had  occurred  in 
his  lifetime." 

The  bond  of  deputy  clerks  is  required  under  §  796,  R.  S.,  Comp. 
Stat.  1901,  p.  620,  4  F.  S.  A.  83. 

The  oath  of  the  deputy  clerk  is  the  same  as  that  of  the  clerk.85 

§  35.  Marshals. 

§  776,  R.  S.,  Comp.  Stat.  1901,  p.  604,  4  F.  S.  A.  76f 
Rose's  Code,  §  618.  "(Marshals — for  all  the  districts.)  A 

26  See  §  33,  supra. 

n  Superseding  §  558,  R.  S.,  Rose's  Code,  §  568,  1  Comp.  St.  1901,  p.  452r 


§    ->(j  DISTRICT    COURTS ORGANIZATION OFFICERS  21 

marshal  shall  be  appointed  in  each  district,  except  in  the 
middle  district  of  Alabama,  and  the  northern  district  of 
Georgia,  and  the  western  district  of  South  Carolina.  The 
marshal  of  the  southern  district  of  Alabama  shall  perform 
the  duties  of  marshal  of  the  middle  district  of  said  state,  and 
shall  keep  an  office  at  Montgomery  in  said  middle  district. 
The  marshal  of  the  southern  district  of  Georgia  shall  perform 
the  duties  of  marshal  of  the  northern  district  of  said  state. 
The  marshal  of  the  eastern  district  of  South  Carolina  shall 
perform  the  duties  of  marshal  of  the  western  district  of  said 
state." 

itt... 

Tli e  term  of  the  marshal  is  four  years,  under  §  779,  K.  S., 
Comp.  Stat.  1901,  p.  605,  4  F.  S.  A.  76,  Rose's  Code,  §  617. 

Vacancies  in  marshal's  office  may  be  temporarily  filled  under 
§  793,  R.  S.,  Comp.  Stat.  1901,  p.  610,  4  E.  S.  A.  72. 

The  oath  of  the  marshal  is  defined  by  §  782,  R.  S.,  Comp.  Stat. 
1901,  p.  606,  4  F.  S:A.  78,  Rose's  Code,  §  625. 

The  bond  of  the  marshal  is  required  under  §  783,  R  S.,  Comp. 
Stat.  1901,  p.  607,  4  F.  S.  A.  84,  Rose's  Code,  §  627. 

Suit  on  marshal's  bond  is  authorized  under  §  784,  R.  S.,  Comp. 
Stat.  1901,  p.  607,  4  F.  S.  A.  84,  Rose's  Code,  §  629. 

Bond  to  be  further  security  after  judgment  is  provided  in  § 
785,  R.  S.,  Comp.  Stat.  1901,  p.  607,  4  F.  S.  A.  85,  Rose's  Code, 
§  630. 

Limitation  of  suit  on  bond  is  defined  in  §  726,  R.  S.,  Comp. 
Stat.  1901,  p.  584,  4  F.  S.  A.  85,  Rose's  Code,  §  631. 

§  36.  Deputy  Marshals. 

§  180,  R.  SI,  Comp.  Stat.  1901,  p.  605,  k  F.  S.  A.  1Q, 
"(Deputy  marshals.)  Every  marshal  may  appoint  one  or 
more  deputies,  who  shall  be  removable  from  office  by  the 
judge  of  the  district  court,  or  by  the  circuit  court  for  the 
district,  at  the  pleasure  of  either." 

Oath  of  deputy  marshal  set  out  in  §  782,  R.  S.,  Comp.  Stat. 
1901,  p.  606,  4  F.  S.  A.  78,  Rose's  Code,  §  625. 

4  F.  S.  A.  p.  74,  Pierce,  Code,  §  6989,  repealed  by  §  297,  Judicial  Code.  Under 
the  old  section  it  was  held  that  salary  of  deputy  must  be  paid  by  the  clerk 
from  the  earnings  of  the  office  under  the  fee  bill.  Erwin  v.  United  States 
(1SS!»).  37  Fed.  475,  2  L.R.A.  229.  Deputy  is  a  servant  of  the  officer  for 
whom  the  officer  shall  answer.  7  Bac.  Ahr.  310  (T>).  A  deputy  clerk  is  an 
officer  of  the  court.  Ex  parte  Simons.  32  Fed.  681. 


22          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE       §  38 

The  marshal  may  appoint  bonded  deputies  without  regard  to 
the  civil  service  laws.     (38  Stat.  at  L.  208.) 

§  37.  Marshal's  Field  Deputies. 

§  11,  Act  May  28,  1896,  ch.  252,  29  Stat.  at  L.  182,  Comp. 
St.  1901,  p.  615,  4  F.  8.  A.  77,  as  amended  by  act  March  4, 
1911,  ch.  269,  86  Stat.  at  L.  1555,  Comp.  St.  1911,  p.  263, 
1912  Supp.  F.  S.  A.  v.  1,  p.  130.  "That  at  any  time  when, 
in  the  opinion  of  the  marshal  of  any  district,  the  public  in- 
terest will  thereby  be  promoted,  he  may  appoint  one  or  more 
deputy  marshals  for  such  district,  who  shall  be  known  as  field 
deputies,  and  who,  unless  sooner  removed  by  the  district 
court  as  now  provided  by  law,  shall  hold  office  during 
the  pleasure  of  the  marshal,  except  as  hereinafter  pro- 
vided, and  who  shall  each,  as  his  compensation,  re- 
ceive the  gross  fees,  including  mileage,  as  provided  by 
law,  earned  by  him,  not  to  exceed  one  thousand  five  hun- 
dred dollars  per  fiscal  year,  or  at  that  rate  for  any  part  of  a 
fiscal  year ;  and  in  addition  shall  be  allowed  his  actual  neces- 
sary expenses,  not  exceeding  two  dollars  a  day,  while  en- 
deavoring to  arrest,  under  process,  a  person  charged  with  or 
convicted  of  crime :  Provided,  That  a  field  deputy  may  elect 
to  receive  actual  expenses  on  any  trip  in  lieu  of  mileage: 
Provided  further,  That  in  special  cases,  where  in  his  judg- 
ment justice  requires,  the  Attorney  General  may  make  an 
additional  allowance,  not,  however,  in  any  case  to  make  the 
aggregate  annual  compensation  of  any  field  deputy  in  excess 
of  two  thousand  five  hundred  dollars  nor  more  than  the  gross 
fees  earned  by  such  field  deputy.  The  marshal,  immediately 
after  making  any  appointment  or  appointments  under  this 
section,  shall  report  the  same  to  the  Attorney  General,  stating 
the  facts  as  distinguished  from  conclusions  constituting  the 
reason  for  such  appointment,  and  the  Attorney  General  may 
at  any  time  cancel  any  such  appointment  as  the  public  inter- 
est may  require.  This  act  to  take  effect  from  and  after  July 
first,  nineteen  hundred  and  eleven." 

§  38.  Criers  and  Bailiffs. 

§  5,  Judicial  Code,0  36  Stat.  at  L.  1088,  Comp.  St.  1911, 
p.  130,  1912  Supp.  F.  S.  A.  v.  1,  p.  133.  "The  district  court 
for  each  district  may  appoint  a  crier  for  the  court;  and  the 

o  §  715,  R.  S.,  Rose's  Code.  §  687,  1  Comp.  Stat.  1901,  p.  579,  4  F.  S.  A. 
81.  Bailiffs  entitled  to  per  diem  for  attendance  on  days  when  court  is  ad- 
journed by  written  order  of  the  judge  as  provided  by  R.  S.  §  672.  United 
States  v.  McCabe,  122  Fed.  653;  United  States  v.  Pitman,  147  U.  S.  669,  37 


§    40  DISTRICT    COURTS ORGANIZATION OFFICERS  23 

/  marshal  may  appoint  such  number  of  persons,  not  exceeding 
five,  as  the  judge  may  determine,  to  wait  upon  the  grand  and 
other  juries,  and  for  other  necessary  purposes." 

§  39.    United  States  District  Attorney. 

§  767,  R.  S.,  Comp.  St.  1901,  p.  599,  4  F.  S.  A.  70, 
"(District  attorneys — for  all  the  districts.)  There  shall 
be  appointed  in  each  district,  except  in  the  middle  district 
of  Alabama,  and  the  northern  district  of  Georgia,  and  the 
western  district  of  South  Carolina,  a  person  learned  in  the 
law,  to  act  as  attorney  for  the  United  States  in  such  dis- 
trict. The  district  attorney  of  the  northern  district  of  Ala- 
bama shall  perform  the  duties  of  district  attorney  of  the 
middle  district  of  said  state ;  and  the  district  attorney  of  the 
southern  district  of  Georgia  shall  perform  the  duties  of  dis- 
trict attorney  of  the  northern  district  of  said  state;  and  the 
district  attorney  of  the  eastern  district  of  South  Carolina 
shall  perform  the  duties  of  district  attorney  for  the  western 
district  of  said  state." 

Their  term  is  four  years  and  they  are  required  to  be  sworn 
under  §  769,  K.  S.,  Comp.  Stat.  1901,  p.  600,  4  F.  S.  A.  71. 

Special  Counsel  may  be  retained  to  aid  United  States  district 
attorneys  under  §  363,  R.  S.,  Comp.  Stat.  1901,  p.  208,  4  F.  S.  A. 
70,  Rose's  Code,  §  552,  but  heads  of  departments  must  call  on  de- 
partment of  justice  for  counsel  under  §  189,  R.  S.,  Comp.  St. 
1901,  p.  94,  3  F.  S.  A.  63. 

Compensation  and  oath  of  such  special  counsel  are  provided  for 
in  §  366,  R.  S.,  Comp,  Stat.  1901,  p.  209,  4  F.  S.  A.  71,  Rose's 
Code,  §  555. 

Vacancies  in  office  may  be  temporarily  filled  under  §  793,  R.  S., 
Comp.  Stat.  1901,  p.  610,  4  F.  S.  A.  72. 

§  40.  Assistant  District  Attorney. 

§  8,  Act  May  28,  1896,  ch.  252,  29  Stat.  at  L.  186,  Comp. 
St.  1901,  p.  613,  4  F.  S.  A.  71.  "(Assistant  district 
attorneys — compensation — expense  allowance  of  district 
attorney  and  assistants.)  That  whenever,  in  the  opinion 
of  the  district  judge  of  any  district  or  the  chief  justice 

L.  ed.  324,  13  Sup.  Ct.  Rep.  425.  Duties  of  messenger  and  crier  are  compat- 
ible and  distinct  in  character,  and  compensation  may  be  received  for  both 
by  the  one  performing  them.  Preston  v.  United  States,  37  Fed.  417 ;  United 
States  v.  Saunders,  120  U.  S.  126,  30  L.  ed.  594,  7  Sup.  Ct.  Rep.  4<>7. 


24          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  41 

of  any  territory  and  the  district  attorney,  evidenced 
by  writing,  the  public  interest  requires  it,  one  or  more 
assistant  district  attorneys  may  be  appointed,  by  the  At- 
torney General;  but  such  opinion  shall  state  to  the  At- 
torney General  the  facts  as  distinguished  from  conclu- 
sions, showing  the  necessity  therefor.  Such  assistant  dis- 
trict attorneys  shall  be  paid  such  salary  as  the  Attorney 
General  may  from  time  to  time  determine  as  to  each,  which 
shall  in  no  case  exceed  two  thousand  five  hundred  dollars 
per  annum :  Provided,  That  the  necessary  expenses  for  lodg- 
ing and  subsistence  actually  paid,  not  exceeding  four  dollars 
per  day  and  actual  and  necessary  traveling  expenses  of  the 
district  attorney  and  his  assistants,  while  absent  from  their 
respective  official  residences  and  necessarily  employed  in 
going  to,  returning  from,  and  attending  before  any  United 
States  court,  commissioner,  or  other  committing  magistrate, 
and  while  otherwise  necessarily  absent  from  their  respective 
official  residences  on  official  business,  shall  be  allowed  and 
paid  in  the  manner  hereinbefore  provided." 

§  41.  Court  Commissioners,  Receivers,  Masters  in  Chan- 
cery— General  Statement.  Court  commissioners  are  officers 
with  magisterial  powers  in  both  civil  and  criminal  matters  com- 
ing under  the  jurisdiction  of  the  Federal  laws.26 

Receivers  are  officers  appointed  in  special  cases  with  authority 
to  operate  and  manage  properties.  This  power  must  be  exercised 
in  conformity  with  valid  state  laws  of  the  state  where  the  prop- 
erty is  situated.27  They  may  be  sued  without  leave  of  court  in 
certain  cases.28 

Masters  in  chancery  are  appointed  under  Equity  Rule  68.89 

§  68,  Judicial  Code,9  36  Stat.  at  L.  1105,  Comp.  St.  1911, 
p.  155,  1912  Supp.  F.  S.  A.  v.  1,  p.  159.  "Xo  clerk  of  a  dis- 
trict court  of  the  United  States  or  his  deputy  shall  be  ap- 
pointed a  receiver  or  master  in  any  case,  except  where  the 
judge  of  said  court  shall  determine  that  special  reasons  exist 
therefor,  to  be  assigned  in  the  order  of  appointment." 

26  §  42.  87  §  1052.  infra.     See  also  ch.  37,  post.         28  §  1053.  infra. 

29  Ch.  36,  post. 

i»  Re-enacting  act  of  March  3,  1879,  ch.  183,  20  Stat.  at  L.  415,  Foster's  Fed. 
Prac.  (4th  ed.)  pp.  842,  985.  Coriip.  St.  1901,  p.  591.  4  F.  S.  A.  81,  which  is 
repealed  bv  §  297.  Judicial  Code.  In  general,  Briggs  v.  Neal  et  al.  120  Fed. 
224,  56  C.*C.  A.  572. 


42  DISTRICT    COURTS ORGANIZATION— OFFICERS  25 

§  42.  Court  Commissioners. 

§  19,  Act  May  28,  1896,  ch.  252,  29  Stat.  at  L.  184,  Comp. 
St.  1901,  p.  499,  4  F.  8.  A.  79.  "(Circuit  court  commis- 
sioners abolished — United  States  commissioners  appointed- 
powers  and  duties.)  That  the  terms  of  office  of  all  commis- 
sioners of  the  circuit  courts  heretofore  appointed  shall  ex- 
pire on  the  thirtieth  day  of  June,  eighteen  hundred  and 
ninety-seven ;  and  such  office  shall  on  that  day  cease  to  exist, 
and  said  commissioners  shall  then  deposit  all  the  records  and 
other  official  papers  appertaining  to  their  offices  in  the  office 
of  the  clerk  of  the  circuit  court  by  which  they  were  ap- 
pointed. All  proceedings  pending,  returnable,  unexecuted, 
or  unfinished  at  said  date  before  any  such  commissioner  shall 
be  continued  and  disposed  of  according  to  laAv  by  such  com- 
missioner appointed  as  herein  provided,  as  may  be  designated 
by  the  district  court  for  that  purpose.  It  shall  be  the  duty 
of  the  district  court  of  each  judicial  district  to  appoint  such 
number  of  persons,  to  be  known  as  United  States  commis- 
sioners, at  such  places  in  the  district  as  may  be  designated  by 
the  district  court,  which  United  States  commissioners  shall 
have  the  powers  and  perform  the  same  duties  as  are  now 
imposed  upon  commissioners  of  the  circuit  courts.  The  ap- 
pointment of  such  United  States  commissioners  shall  be  en- 
tered of  record  in  the  district  courts,  and  notice  thereof  at 
once  given  by  the  clerk  to  the  Attorney  General.  That  such 
United  States  commissioners  shall  hold  their  offices,  respec- 
tively, for  the  term  of  four  years,  but  they  shall  be  at  any 
time  subject  to  removal  by  the  district  court;  and  no  person 
shall  at  any  time  be  a  clerk  or  deputy  clerk  of  a  United 
States  court  and  a  United  States  commissioner  without  the 
approval  of  the  Attorney  General:  Provided,  That  all  acts 
and  parts  of  acts  applicable  to  commissioners  of  the  circuit 
courts,  except  as  to  appointment  and  fees,  shall  be  appli- 
cable to  United  States  commissioners  appointed  under  this 
act.  Warrants  of  arrest  for  violations  of  internal  revenue 
laws  may  be  issued  by  United  States  commissioners  upon  the 
sworn  complaint  of  a  United  States  district  attorney,  assis- 
tant United  States  district  attorney,  collector  or  deputy 
collector  of  internal  revenue,  or  revenue  agent  or  private 
citizen,  but  no  such  warrant  of  arrest  shall  be  issued  upon 
the  sworn  complaint  of  a  private  citizen  unless  first  approved 
in  writing  by  a  United  States  district  attorney.  That  United 
States  commissioners  and  all  clerks  and  all  deputy  clerks  of 
United  States  courts  are  hereby  authorized  to  administer 
oaths." 


26          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  42 

§  61,  Judicial  Code,™  86  Stot.  at  L.  1104,  Comp.  St. 
1911,  p.  15k,  1912  Supp.  F.  8.  A.  v.  1,  p.  158.  "Any  district 
judge  may  appoint  commissioners,  before  whom  appraisers 
of  vessels  or  goods  and  merchandise  seized  for  breaches  of 
any  law  of  the  United  States  may  be  sworn ;  and  such  oaths, 
so  taken,  shall  be  as  effectual  as  if  taken  before  the  judge  in 
open  court." 

Arrests  may  be  made  by  commissioners  for  offenses  against  the 
United  States.80 

Bail  may  be  fixed  by  a  commissioner  in  criminal  cases  except 
where  punishment  is  death.31  He  may  receive  a  surrender  under 
bail.38 

Civil  rights  laws — special  powers  are  conferred.88 

Other  powers  and  duties  are  mentioned  in  the  note,  4  F.  S.  A. 
164  to  §  945,  R.  S. 

30  §  1014,  R.  S.,  Comp.  Stat.  1901,  p.  716,  2  F.  S.  A.  32. 

31  §  1015,  R.  S.,  Comp.  Stat.  1901,  p.  718,  1  F.  S.  A.  521,  Rose's  Code,  § 
1544.     §  1016,  R.  S.,  Comp.  Stat.  1901,  p.  718,  1  F.  S.  A.  522,  Rose's  Code, 
§   1595. 

32  §  1018,  R.  S.,  Comp.  Stat.  1901,  p.  719,  1  F.  S.  A.  522,  Rose's  Code,  §  1549. 

33  §§  1982-1987,  R.  S.,  Comp.  Stat.  1901,  pp.  1264,  1265,  1  F.  S.  A.  798-800. 
PI>  Re-enacting   §  570,  R.  S.,  Rose's  Code,   §   679,   Comp.   St.   1901,  p.  463, 

4  F.  S.  A.  79,  which  section,  is  repealed  by  §  297,  Judicial  Code. 


CHAPTER  3. 

DISTRICT  COURTS— ORGANIZATION,  FURTHER  AS  TO. 

Sec. 

60.  General   Statement. 

61.  Courts  Always  Open  for  Certain  Purposes. 

62.  Special   Terms. 

63.  Adjournment  of  Court  When  Judge  Absent. 

64.  Continuance  Where  Office  of  Judge  Becomes  Vacant. 

65.  Trials  Commenced  May  Be  Concluded  in  New  Terra. 

66.  Monthly  Adjournments  of  Regular  Term  to  Expedite   Criminal   Cases. 

67.  Effect  of  Altering  Terms. 

68.  Places  for  Keeping  Records. 

69.  Transfer  and  Deposit  of  Territorial  Records  on  Becoming  a  State.     Dis- 

trict Judge's  Duty. 

70.  Reports  of  Decisions. 

71.  Admission  to  Practice  Before. 

72.  Rules  of  Court — Law  Actions. 

73.  Rules  of  Court — Equity  Suits. 

§  60.  General  Statement.  Judicial  officers  for  district  courts 
have  been  treated  in  chapter  2,  ante. 

The  regular  terms,  sessions,  and  places  of  holding  forth  in  the 
various  districts  are  set  out  in  chapter  4,  post. 

The  court  is  always  open  for  certain  purposes.1 

Special  terms  may  be  ordered  by  the  district  judge  when  busi- 
ness requires.2 

If  the  judge  is  absent,  the  marshal  or  clerk  may  adjourn  court.8 

So  also,  if  the  office  of  judge  becomes  vacant,  the  clerk  may  con- 
tinue pending  proceedings.4 

Trials  commenced  may  be  completed  in  a  new  term.  They 
are  not  stayed  or  discontinued  by  the  arrival  of  a  new  term.6 

Monthly  adjournments  of  terms  may  be  made  to  expedite  crim- 
inal cases.6 

1  §  61  2  §  62  8  §  63  *  §  64 

5§  65  fl§  66 

27 


28  MONTGOMERY'S  MANUAL,  OF  FEDERAL  PROCEDURE       §  61 

The  altering  of  terms  does  not  affect  the  validity  of  proceedings 
already  taken,  and  matters  pending  are  thrown  over  to  the  next 
term  following.7 

Records  of  district  court  are  kept  where  the  court  is  held,  and, 
if  more  than  one  of  such  places,  where  the  district  judge  desig- 
nates. 

On  becoming  a  state,  territorial  records  are  transferred  to  the 
district  court.9 

Reports  of  decisions  are  to  be  found  in  Federal  Reporter  and, 
before  1880,  in  the  Federal  Decisions.10 

Rules  for  admission  to  practice  are  provided  in  the  several 
districts.11 

Rules  of  court  in  law  actions  may  be  established  under  §§914 
and  918,  Revised  Statutes.12 

Rules  of  court  in  equity  suits  are  established  by  the  Supreme 
Court  under  §  917,  Revised  Statutes.18 

§  61.  Courts  Always  Open  for  Certain  Purposes. 

§  9,  Judicial  Code,11  36  Stat.  at  L.  1088,  Comp.  St.  1911, 
p.  131,  1912  Supp.  F.  8.  A.  v.  1,  p.  13k-  "The  district 
courts,  as  courts  of  admiralty  and  as  courts  of  equity,  shall 
be  deemed  always  open  for  the  purpose  of  filing  any  plead- 
ing, of  issuing  and  returning  mesne  and  final  process,  and  of 
making  and  directing  all  interlocutory  motions,  orders,  rules, 
and  other  proceedings  preparatory  to  the  hearing,  upon  their 
merits,  of  all  causes  pending  therein.  Any  district  judge 
may,  upon  reasonable  notice  to  the  parties,  make,  direct,  and 
award,  at  chambers  or  in  the  clerk's  office,  and  in  vacation 
as  well  as  in  term,  all  such  process,  commissions,  orders,  rules, 
and  other  proceedings,  whenever  the  same  are  not  grantable 
of  course,  according  to  the  rules  and  practice  of  the  court." 

7§  67  8§  68  9?5  69  10  §  70 

11  §  71  12  §  72  13  §  73 

a  Re-enacting  §  574,  R.  S.,  Comp.  St.  1901,  p.  475,  Rose's  Code,  §  368, 
4  F.  S.  A.  671,  which  is  repealed  by  §  297,  Judicial  Code.  Same  as  Equity 
Rule  1,  omitting  the  words  -<as  courts  of  admiralty  and."  McDowell  v. 
United  States,  159  U.  S.  596,  600,  40  L.  ed.  271,  273/16  Sup.  Ct.  Rep.  Ill; 
Central  Trust  Co.  v.  Sheffield  &  Birmingham  Coal,  I.  R.  Co.  60  Fed.  9:  Butler 
v.  United  States,  87  Fed.  655.  In  general,  United  States  v.  Finnell,  185  U.  S. 
236,  46  L.  ed.  890,  22  Sup.  Ct.  Rep.  633;  United  States  v.  Marvin,  212  U.  S. 
275,  53  L.  ed.  510,  29  Sup.  Ct.  Rep.  2t)7. 


§    04:       DISTRICT    COURTS ORGANIZATION,    FURTHER    AS    TO  29 

§  62.  Special  Terms. 

§  11,  Judicial  Code?  36  Stat.  at  L.  1088,  Comp.  St.  1911, 
p.  131,  1912  Supp.  F.  S.  A.  v.  1,  p.  134.  "A  special  term 
of  any  district  court  may  be  held  at  the  same  place  where 
any  regular  term  is  held,  or  at  such  other  place  in  the  dis- 
trict as  the  nature  of  the  business  may  require,  and  at  such 
time  and  upon  such  notice  as  may  be  ordered  by  the  district 
judge.  Any  business  may  be  transacted  at  such  special  term 
which  might  be  transacted  at  a  regular  term." 

§  63.  Adjournment  of  Court  When  Judge  Absent. 

§  12,  Judicial  Code*  36  Stat.  at  L.  1088,  Comp.  St.  1911, 
p.  131,  1912  Supp.  F.  S.  A.  v.  1,  p.  135.  "If  the  judge  of 
any  district  court  is  unable  to  attend  at  the  commencement 
of  any  regular,  adjourned,  or  special  term,  or  any  time  during 
such  term,  the  court  may  be  adjourned  by  the  marshal,  or 
clerk,  by  virtue  of  a  written  order  directed  to  him  by  the 
judge,  to  the  next  regular  term,  or  to  any  earlier  day,  as  the 
order  may  direct." 

§  64.  Continuance  Where  Office  of  Judge  Becomes  Va- 
cant. 

§  22,  Judicial  Code,*  36  Stat.  at  L.  1090,  Comp.  St.  1911, 
p.  134,  1912  Supp.  F.  S.  A.  v.  1,  p.  138.  "When- the  office 
of  judge  of  any  district  court  becomes  vacant,  all  process. 

b  Re-enacting  §  581.  R.  S.,  Rose's  Code,  §  359,  Foster's  Fed.  Prac.  (4th 
ed.)  p.  226,  1  Comp.  St.  1901,  p.  477,  4  F.  S.  A.  672,  which  is  repealed  by  §  297, 
Judicial  Code. 

Butler  v.  United  States,  87  Fed.  655;  United  States  v.  Kessel,  63  Fed. 
433.  Orders  made  in  chambers.  United  States  v.  The  Schooner  Little  Charles. 
1  Brock.  (U.  S.)  380,  26  Fed.  Cas.  No.  15,613.  In  general,  American  Railroad 
Co.  of  Porto  Rico  v.  Castro,  204  U.  S.  453.  51  L.  ed.  564,  27  Sup.  Ct.  Rep.  466; 
Goll  v.  United  States,  151  Fed.  412,  80  C.  C.  A.  642. 

e  Re-enacting  §  583,  R.  S.,  Rose's  Code,  §  364,  Comp.  St.  1901,  p.  478. 
4  F.  S.  A.  673,  and  §§  671,  672,  R.  S.,  4  F.  S.  A.  688,  which  sections  are  re- 
pealed by  §  297,  Judicial  Code. 

This  refers  to  any  day  on  which  the  court  is  appointed  to  sit.  Pitman 
v.  United  States,  4o' Fed.' 159. 

The  term  is  that  session  of  the  court  which  begins  at  a  time  fixed  by  or 
under  authority  of  law,  and,  having  proceeded  continuously,  ends  when  the 
business  then  under  consideration  is  concluded.  Pitman  v.  United  States, 
supra.  In  general.  United  States  v.  Pitman,  147  U.  S.  669,  37  L.  ed.  324. 
13  Sup.  Ct.  Rep.  425. 

d  Re-enacting  §  602,  R.  S.,  Rose's  Code.  §  181,  Foster's  Fed.  Prac.  (4th 
ed.)  p.  682,  Comp.  St.  1901,  p.  484,  4  F.  S.  A.  67!),  which  section  is  repealed  by 
$  297,  Judicial  Code.  In  general.  Ball  v.  United  States,  140  U.  S.  118.  35 
L.  ed.  377.  11  Sup.  Ct.  Rep.  761. 


30          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE       §  67 

pleadings,  and  proceedings  pending  before  such  court  shall, 
if  necessary,  be  continued  by  the  clerk  thereof  until  such  times 
as  a  judge  shall  be  appointed,  or  designated  to  hold  such 
court ;  and  the  judge  so  designated,  while  holding  such  court, 
shall  possess  the  powers  conferred  by,  and  be  subject  to  the 
provisions  contained  in,  section  nineteen." 

§  65.  Trials  Commenced  May  Be  Concluded  in  New 
Term. 

§  8,  Judicial  Code*  36  Stat.  at  L.  1088,  Comp.  St.  1911, 
p.  130,  1912  Supp.  F.  8.  A.  v.  1,  p.  134.  "When  the  trial  or 
hearing  of  any  cause,  civil  or  criminal,  in  a  district  court 
has  been  commenced  and  is  in  progress  before  a  jury  or  the 
court,  it  shall  not  be  stayed  or  discontinued  by  the  arrival 
of  the  time  fixed  by  law  for  another  session  of  said  court; 
but  the  court  may  proceed  therein  and  bring  it  to  a  conclu- 
sion in  the  same  manner  and  with  the  same  eifect  as  if  another 
stated  term  of  the  court  had  not  intervened." 

§  66.  Monthly  Adjournments  of  Regular  Term  to  Expe- 
dite Criminal  Cases. 

§  10,  Judicial  Code,*  36  Stat.  at  L.  1088,  Comp.  St.  1911, 
p.  131,  1912  Supp.  F.  S.  A.  v.  1,  p.  134.  "District  courts 
shall  hold  monthly  adjournments  of  their  regular  terms,  for 
the  trial  of  criminal  causes,  when  their  business  requires  it 
to  be  done,  in  order  to  prevent  undue  expenses  and  delays 
in  such  cases." 

§  67.  Effect  of  Altering  Terms. 

§  1,  Judicial  Code,K  36  Stat.  at  L.  1088,  Comp.  St.  1911, 
p.  130, 1912  Supp.  F.  S.  A.  v.  1,  p.  134.  "No  action,  suit,  pro- 
ceeding, or  process  in  any  district  court  shall  abate  or  be 
rendered  invalid  by  reason  of  any  act  changing  the  time  of 

e  Re-enacting  §  746,  R.  S.,  Rose's  Code,  §  370,  Foster's  Fed.  Prac.  (4th  ed.) 
p.  227,  Comp.  St.  1901,  p.  590,  4  F.  S.  A.  556,  which  is  repealed  by  §  297,  Judi- 
cial Code.  It  has  been  held  that  a  trial  is  commenced  when  the  term  ends,  al- 
though a  full  jury  has  not  been  impaneled.  United  States  v.  Loughery,  13 
Blatchf.  267,  26  Fed.  Cas.  No.  15,631. 

*  Re-enacting  without  change  R.  S.,  §  578,  Rose's  Code,  §  360,  Comp. 
St.  1901,  p.  476,  4  F.  S.  A.  672,  which  is  repealed  by  §  297,  Judicial  Code. 
In  general,  Pitman  v.  United  States,  45  Fed.  159.  Adjournment  may  be  after 
prior  adjournment  by  the  judge.  Clerk  entitled  to  fees  for  attendance  on 
day  of  adjournment. 

K  Re-enacting  §  573,  R.  S.,  Rose's  Code,  §  369,  1  Comp.  St.  1901,  p.  475, 
4  F.  S.  A.  671.  Similar  provision  as  to  circuit  courts  repealed,  §  660, 


§    69         DISTRICT    COURTS ORGANIZATION,    FURTHER    AS    TO  31 

holding  such  court,  but  the  same  shall  be  deemed  to  be  re- 
turnable to,  pending,  and  triable  in  the  terms  established  next 
after  the  return  day  thereof." 

x 

§  68.  Places  for  Keeping  Records. 

§  6,  Judicial  Code,11  36  Stat.  at  L.  1088,  Comp.  St.  1911, 
p.  130,  1912  Supp.  F.  8.  A.  v.  1,  p.  184-  "The  records  of  a 
district  court  shall  be  kept  at  the  place  where  the  court  is 
held.  When  it  is  held  at  more  than  one  place  in  any  district 
and  the  place  of  keeping  the  records  is  not  specially  provided 
by  law,  they  shall  be  kept  at  either  of  the  places  of  holding 
the  court  which  may  be  designated  by  the  district  judge." 

§  69.  Transfer  and  Deposit  of  Territorial  Records  on  Be- 
coming a  State.  District  Judge's  Duty. 

§  62,  Judicial  Code,1  36  Stat.  at  L.  1104,  Comp.  St.  1911, 
p.  154,  1912  Supp.  F.  S.  A.  v.  1,  p.  158.  "When  any  terri- 
tory is  admitted  as  a  state,  and  a  district  court  is  established 
therein,  all  the  records  of  the  proceedings  in  the  several  cases 
pending  in  the  highest  court  of  said  territory  at  the  time  of 
such  admission,  and  all  records  of  the  proceedings  in  the  sev- 
eral cases  in  which  judgments  or  decrees  had  been  rendered 
in  said  territorial  court  before  that  time,  and  from  which 
writs  of  error  could  have  been  sued  out  or  appeals  could  have 
been  taken,  or  from  which  writs  of  error  had  been  sued  out 
or  appeals  had  been  taken  and  prosecuted  to  the  Supreme 
Court  or  to  the  circuit  court  of  appeals,  shall  be  transferred 
to  and  deposited  in  the  district  court  for  the  said  state." 

§  63,  Judicial  Code*  36  Stat.  at  L.  1104,  Comp.  St.  1911, 
p.  154,  1912  Supp.  F.  S.  A.  v.  1,  p.  158.  "It  shall  be  the 
duty  of  the  district  judge,  in  the  case  provided  in  the  preced- 
ing section,  to  demand  of  the  clerk,  or  other  person  having 
possession  or  custody  of  the  records  therein  mentioned,  the 

R.  S.,  1  Comp.  St.  1901,  p.  542,  4  F.  S.  A.  685.  McGlashan  v.  United  States, 
71  Fed.  434,  18  C.  C.  A.  172. 

i»  Re-enactment  of  §  562,  R.  S.,  Rose's  Code,  §  382,  act  Sept.  24,  1789, 
ch.  20,  §  3,  1  Stat.  at  L.  73,  1  Comp.  Stat.  1901,  p.  454,  4  F.  S.  A.  p.  218, 
repealed  by  §  297,  Judicial  Code. 

i  Re-enacting  §  567,  R.  S.,  Rose's  Code,  §  383,  Foster's  Fed.  Prac.  (4th 
ed.)  p.  1456,  Comp.  St.  1901,  p.  462,  4  F.  S.  A.  237,  which  section  is  repealed 
by  §  297,  Judicial  Code.  In  general,  Benner  et  al.  v.  Porter,  50  U.  S.  235,  13 
L.  ed.  119,  9  How.  (U.  S.)  235. 

J  Re-enacting   §   568,  R.   S.,   Rose's   Code,   §   383,   Foster's   Fed.   Prac.    (4th 


32          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE       §  72 

delivery  thereof,  to  be  deposited  in  said  district  court;  and 
in  case  of  the  refusal  of  such  clerk  or  person  to  comply  with 
such  demand,  the  said  district  judge  shall  compel  the  delivery 
of  such  records  by  attachment  or  otherwise,  according  to  law." 

§  70.  Reports  of  Decisions.  The  decisions  of  the  district 
courts  are  to  be  found  in  the  Federal  Keporter,  containing  in  lit  i:; 
some  200  volumes.  This  set  also  contains  the  United  States  cir- 
cuit court  decisions  up  to  the  time  said  court  was  abolished,  Jan- 
uary 1,  1912.  It  also  contains  the  decisions  of  the  circuit  court  of 
appeals,  established  in  1891,  and  the  commerce  court,  established 
in  1911,  and  since  abolished.  (See  ch.  9,  Judicial  Code,  in  our 
Appendix.)  Decisions  prior  to  1880  are  contained  in  the  Federal 
Cases. 

§  71.  Admission  to  Practice  Before.  The  rules  for  admis- 
sion to  practice  before  the  district  courts  of  the  United  States 
are  contained  in  the  court  rules  adopted  by  the  several  district 
courts,  and  vary  in  the  different  districts.  Generally,  attorneys 
who  have  been  admitted  to  practice  in  the  state  courts  are  eligible 
and  admitted  on  motion. 

§  72.  Rules  of  Court — Law  Actions.14  The  rules  govern- 
ing law  actions  under  §§  914  and  918  of  the  Revised  Statutes  of 
the  United  States,  quoted  below,  conform  to  those  of  state  courts 
of  record  as  modified  by  Federal  statutes  and  rules  of  practice  of 
the  district  courts  in  the  several  districts. 

§  914,  R.  S.,  Comp.  St.  1901,  p.  684,  4  F.  S.  A.  563. 
(Practice  and  proceedings  in  other  than  equity  and  admiral- 
ty causes.)  "The  practice,  pleadings,  and  forms  and  modes 
of  proceeding  in  civil  causes,  other  than  equity  and  admiral- 
ty causes,  in  the  circuit  and  district  courts,  shall  conform, 
as  near  as  may  be,  to  the  practice,  pleadings,  and  forms  and 
modes  of  proceeding  existing  at  the  time  in  like  causes  in 
the  courts  of  record  of  the  state  within  which  such  circuit 

ed.)  p.  1456,  Comp.  St.  1901,  p.  -162,  4  F.  S.  A.  238,  which  section  is  repealed 
by  §  297,  Judicial  Code. 
'  "  See  ch.  18. 


§    73       DISTRICT    COURTS ORGANIZATION,    FURTHER    AS    TO  33 

or  district  courts  are  held,  any  rule  of  court  to  the  contrary 
notwithstanding." 

§  918,  R.  8.,  Comp.  St.  1901,  p.  685,  4  F.  8.  A.  585, 
Rose's  Code,  §  805.  (Practice  in  the  several  courts  to  be 
regulated  by  their  own  rules.)  "The  several  circuit  and  dis- 
trict courts  may,  from  time  to  time,  and  in  any  manner  not 
inconsistent  with  any  law  of  the  United  States,  or  with  any 
rule  prescribed  by  the  Supreme  Court  under  the  preceding 
section,  make  rules  and  orders  directing  the  returning  of 
writs  and  processes,  the  filing  of  pleadings,  the  taking  of 
rules,  the  entering  and  making  up  of  judgments  by  default, 
and  other  matters  in  vacation,  and  otherwise  regulate  their 
own  practice  as  may  be  necessary  or  convenient  for  the  ad- 
vancement of  justice  and  the  prevention  of  delays  in  pro- 
ceedings." 

§  73.  Rules  of  Court — Equity  Suits.15  Equity  suits  are 
governed  by  the  United  States  Statutes,  Supreme  Court  rules,  and 
additional  district  court  rules.  Under  §  917,  R.  S.,  the  Supreme 
Court  is  given  power  to  prescribe  rules  in  equity  and  admiralty 
suits,  and  under  §§  918  and  913,  R.  S.,  and  Equity  Rule  79,  the 
district  courts  may  prescribe  additional  rules  for  their  own  prac- 
tice. 

§  918,  R.  S.,  is  quoted  in  §  72,  supra.  The  other  sections  and 
rule  mentioned  above  are  as  follows : 

.§  917,  R.  S.,  Comp.  Stat.  1901,  p.  684,  4  F.  S. 
A.  583,  Rose's  Code,  §§  802,  1196.  (Power  of  the  Su- 
.preme  Court  to  regulate  the  practice  of  circuit  and  dis- 
trict courts.)  "The  Supreme  Court  shall  have  power  to 
prescribe,  from  time  to  time,  and  in  any  manner  not 
inconsistent  with  any  law  of  the  United  States,  the  forms 
of  writs  and  other  process,  the  modes  of  framing  and  filing 
proceedings  and  pleadings,  of  taking  and  obtaining  evidence, 
of  obtaining  discovery,  of  proceeding  to  obtain  relief,  of 
drawing  up,  entering,  and  enrolling  decrees,  and  of  proceed- 
ing before  trustees  appointed  by  the  court,  and  generally  to 
regulate  the  whole  practice,  to  be  used,  in  suits  in  equity  or 
admiralty,  by  the  circuit  and  district  courts." 

§    913,   R.    S.,   Comp.    St.    1901,  p.    683,   4   F.   S.    A. 

cb.  29. 
Montg. — 3. 


34  MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE       §  73 

56 1,  Rose's  Code,  §§  936,  1195.  (Mesne  process,  and 
proceedings  in  equity  and  admiralty.)  "The  forms  of 
mesne  process  and  the  forms  and  modes  of  proceeding 
in  suits  of  equity  and  of  admiralty  and  maritime  juris- 
diction in  the  circuit  and  district  courts  shall  be  ac- 
cording to  the  principles,  rules,  and  usages  which  belong  to 
courts  of  equity  and  of  admiralty,  respectively,  except 
when  it  is  otherwise  provided  by  statute  or  by  rules  of  court 
made  in  pursuance  thereof;  but  the  same  shall  be  subject  to 
alteration  and  addition  by  the  said  courts,  respectively,  and 
to  regulation  by  the  Supreme  Court,  by  rules  prescribed, 
from  time  to  time,  to  any  circuit  or  district  court,  not  in- 
consistent with  the  laws  of  the  United  States." 

Equity  Rule  79.k  (Additional  rules  by  district  court.) 
"With  the  concurrence  of  a  majority  of  the  circuit  judges  for 
the  circuit,  the  district  courts  may  make  any  other  and  fur- 
ther rules  and  regulations  for  the  practice,  proceedings,  and 
process,  mesne  and  final,  in  their  respective  districts,  not  in- 
consistent with  the  rules  hereby  prescribed,  and  from  time 
to  time  alter  and  amend  the  same." 

it  See  Equity  Rule  79,  with  Annotations,  in  Appendix. 


CHAPTER  4. 


JUDICIAL  DISTRICTS— TERMS  AND  PLACES  OF  HOLDING  COURT  IN 
THE  SEVERAL  STATES. 


Sec. 

100.  The  United  States. 

101.  Alabama. 

102.  Arkansas. 

103.  Arizona. 

104.  California. 

105.  Colorado. 

106.  Connecticut. 

107.  Delaware. 

108.  Florida. 

109.  Georgia. 

110.  Idaho. 

111.  Illinois. 

112.  Indiana. 

113.  Iowa. 

114.  Kansas. 

115.  Kentucky. 

116.  Louisiana. 

117.  Maine. 

118.  Maryland. 

119.  Massachusetts. 

120.  Michigan. 

121.  Minnesota. 

122.  Mississippi. 

123.  Missouri. 

124.  Montana. 


Sec. 

125.  Nebraska. 

126.  Nevada. 

127.  New  Hampshire. 

128.  New  Jersey. 

129.  New  Mexico. 

130.  New  York. 

131.  North  Carolina. 

132.  North  Dakota. 

133.  Ohio. 

134.  Oklahoma. 

135.  Oregon. 

136.  Pennsylvania. 

137.  Rhode  Island. 

138.  South  Carolina. 

139.  South  Dakota. 

140.  Tennessee. 

141.  Texas. 

142.  Utah. 

143.  Vermont. 

144.  Virginia. 

145.  Washington. 

146.  West  Virginia. 

147.  Wisconsin. 

148.  Wyoming. 


§  100.  The  United  States.  Chapter  5  of  the  Judicial  Code, 
contained  in  our  Appendix,  deals  with  the  subject-matter  in  this 
chapter  contained.  The  chapter  heading  of  the  Code  reads,  "Dis- 
trict Courts — Districts,  and  Provisions  Applicable  to  Particular 
States." 

No  district  contains  territory  of  more  than  one  state,  although. 

35 


36          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  101 

a  state  may  contain  more  than  one  district,  and  always  contains  at 
least  one.1 

Judicial  officers  for  these  district  courts  are  treated  of  in  chap- 
ter 2.  Their  organization  in  other  respects,  special  terms,  ad- 
journments, places  of  keeping  records,  reports  of  decisions,  rules 
for  admission  to  practice  before,  and  their  rules  of  practice,  are 
treated  in  chapter  3. 

This  chapter  gives  the  territorial  boundaries  of  the  various  di- 
visions and  districts  in  the  several  states,  the  times  and  places  for 
holding  court. 

§  101.  Alabama. 

§  70,  Judicial  Code,*  Comp.  St.  1911,  p.  156,  1912  Supp. 
F.  S.  A.  v.  1,  p.  161,  as  amended  act  Feb.  28,  1913,  ch.  89, 
37  Stat.  at  L.  698,  699.  "The  state  of  Alabama  is  divided  in- 
to three  judicial  districts,  to  be  known  as  the  northern,  mid- 
dle, and  southern  districts  of  Alabama.  The  northern  district 
shall  include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten,  in  the  counties  of  Cullman,  Jack- 
son, Lawrence,  Limestone,  Madison,  and  Morgan,  which 
shall  constitute  the  northeastern  division  of  said  district; 
also  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Colbert,  Franklin,  and  Lauderdale,  which 
shall  constitute  the  northwestern  division  of  said  district: 
also  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Cherokee,  Dekalb,  Etowah,  Marshall,  and 
Saint  Clair,  which  shall  constitute  the  middle  division  of 
said  district ;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Blount,  Jefferson,  and  Shelby,  which 
shall  constitute  the  southern  division  of  said  district;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the  coun- 
ties of  Walker,  Winston,  Marion,  Fayette,  and  Lamar,  which 
shall  constitute  the  Jasper  division  of  said  district;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Calhoun,  Clay,  Cleburne,  and  Talladega,  which  shall 
constitute  the  eastern  division  of  said  district;  also  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties 
of  Bibb,  Greene,  Pickens,  Sumter,  and  Tuscaloosa,  which 

1  §  20,  infra. 

a  Drawn  from  §  532,  R.  S..  Comp.  St.  1901,  p.  317,  4  F.  S.  A.  17, 
and  other  acts,  10  F.  S.  A.  177,  and  1909  Supp.  F.  S.  A.  298,  which  are  re- 
pealed by  §  297,  Judicial  Code. 


§    101  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  37 

shall  constitute  the  western  division  of  said  district.  Terms 
of  the  district  court  for  the  northeastern  division  shall  be 
held  at  Huntsville  on  the  first  Tuesday  in  April  and  the 
second  Tuesday  in  October ;  for  the  northwestern  division,  at 
Florence  on  the  second  Tuesday  in  February  and  the  third 
Tuesday  in  October:  Provided,  That  suitable  rooms*  and  ac- 
commodations for  holding  court  at  Florence  shall  be  fur- 
nished free  of  expense  to  the  government;  for  the  middle 
division,  at  Gadsden  on  the  first  Tuesdays  in  February  and 
August :  Provided,  That  suitable  rooms  and  accommodations 
for  the  holding  court  at  Gadsden  shall  be  furnished  free  of 
expense  to  the  government;  for  the  southern  division,  at 
Birmingham  on  the  first  Mondays  in  March  and  September, 
which  courts  shall  remain  in  session  for  the  transaction  of 
business  at  least  six  months  in  each  calendar  year;  for  the 
Jasper  division,  at  Jasper  on  the  second  Tuesdays  in  Jan- 
uary and  June ;  Provided,  That  suitable  rooms  and  accommo- 
dations for  holding  court  at  Jasper  shall  be  furnished  free 
of  expense  to  the  government;  for  the  eastern  division,  at 
Anniston  on  the  first  Mondays  in  May  and  November;  and 
for  the  western  division,  at  Tuscaloosa,  on  the  first  Tuesdays 
in  January  and  June.  The  clerk  of  the  court  for  the  north- 
ern district  shall  maintain  an  office  in  charge  of  himself  or 
a  deputy  at  Anniston,  at  Florence,  at  Jasper,  and  at  Gadsden, 
which  shall  be  kept  open  at  all  times  for  the  transaction  of  the 
business  of  said  court.  The  district  judge  for  the  northern 
district  shall  reside  at  Birmingham.  The  middle  district 
shall  include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten,  in  the  counties  of  Autauga,  Bar- 
bour,  Bullock,  Butler,  Chilton,  Coosa,  Covington,  Crenshaw, 
Elmore,  Lowndes,  Montgomery,  and  Pike,  which  shall  con- 
stitute the  northern  division  of  said  district;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  counties  of 
Coffee,  Dale,  Geneva,  Henry,  and  Houston,  which  shall  con- 
stitute the  southern  division  of  said  district;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  counties 
of  Chambers,  Lee,  Macon,  Randolph,  Russell,  and  Talla- 
poosa,  which  shall  constitute  the  eastern  division  of  said 
middle  judicial  district.  Terms  of  the  district  court  for  the 
northern  division  shall  be  held  at  Montgomery  on  the  first 
Tuesdays  in  May  and  December;  and  for  the  southern  di- 
vision, at  Dothan  on  the  first  Mondays  in  June  and  December 
and  for  the  eastern  division,  at  Opelika  on  the  first  Mondays 
in  April  and  November:  Provided,  That  suitable  rooms  and 


38          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE       §  102 

accommodations  for  holding  court  at  Opelika  shall  be  fur- 
nished free  of  expense  to  the  government.  The  clerk  of  the 
court  for  the  middle  district  shall  maintain  an  office,  in 
charge  of  himself  or  a  deputy,  at  Dothan,  and  shall  main- 
tain an  office  in  charge  of  himself  or  a  deputy  at  Opelika, 
which  'said  offices  at  Dothan  and  Opelika  shall  be  kept  open 
at  all  times  for  the  transaction  of  the  business  of  said  di- 
visions. The  southern  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Baldwin,  Choctaw,  Clarke, 
Conecuh,  Escambia,  Mobile,  Monroe,  and  Washington, 
which  shall  constitute  the  southern  division  of  said  dis- 
trict ;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Dallas,  Hale,  Marengo,  Perry,  and  Wilcox, 
which  shall  constitute  the  northern  division  of  said  district. 
Terms  of  the  district  court  for  the  southern  division  shall 
be  held  at  Mobile  on  the  fourth  Mondays  in  May  and  Novem- 
ber ;  and  for  the  northern  division  at  Selma  on  the  first  Mon- 
days in  May  and  November." 

Act  Jan..  11,  1912,  ch.  10,  87  Stat.  at  L.  53.  "That  all 
civil  causes  and  proceedings  now  pending  in  the  circuit  or 
the  district  court  of  the  United  States  for  the  middle  dis- 
trict of  Alabama,  which  arose  in  either  of  the  counties  now 
embraced  in  the  southern  division  of  the  middle  district  of 
Alabama,  as  established  in  the  act  approved  March  seventh, 
nineteen  hundred  and  eight,  entitled,  'An  Act  to  Provide  for 
Circuit  and  District  Courts  of  the  United  States  at  Dothan, 
Alabama,'  shall,  upon  the  application  of  either  party,  be 
transferred  to  the  said  southern  division  of  the  middle  dis- 
trict of  Alabama  for  trial  and  disposition." 

§  102.  Arkansas. 

§  71,  Judicial  Code*  Comp.  St.  1911,  p.  158,  1912  Supp. 
F.  S.  A.  v.  1,  p.  162.  "The  state  of  Arkansas  is  divided  into 
two  districts,  to  be  known  as  the  eastern  and  western  districts 
of  Arkansas.  The  western  district  shall  include  the  terri- 
tory embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Sevier,  Howard,  Little  River,  Pike, 
Hempstead,  Miller,  Lafayette.  Columbia,  Nevada,  Ouachita, 

'»  Drawn  from  §  533,  R.  S.  U.  S.  Foster's  Fed.  Prac.  (4th  ed.)  p.  233,  Comp. 
St.  1001,  p.  31  n.  4  F.  S.  A.  18.  §  556,  R.  S.  U.  S.  Comp.  St.  1901.  p.  451,  4  F.  S. 
A.  16(i.  and  other  acts,  10  F.  S.  A.  211,  which  statutes  are  repealed  by  §  297, 
Judicial  Code,  and  also  100!)  Supp.  F.  S.  A.  301. 


§102  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  39 

Union,  and  Calhoim,  which  shall  constitute  the  Texarkana 
division  of  said  district ;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Polk,  Scott,  Yell, 
Logan,  Sebastian,  Franklin,  Crawford,  Washington,  Benton, 
and  Johnson,  which  shall  constitute  the  Fort  Smith  division 
of  said  district ;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Baxter,  Boone,  Carroll,  Madison, 
Marion,  iSTewton,  and  Searcy,  which  shall  constitute  the 
Harrison  division  of  said  district.  Terms  of  the  district 
court  for  the  Texarkana  division  shall  be  held  at  Texarkana 
on  the  second  Mondays  in  May  and  November ;  for  the  Fort 
Smith  division,  at  Fort  Smith  on  the  second  Mondays  in 
January  and  June;  and  for  the  Harrison  division,  at  Harri- 
son on  the  second  Mondays  in  April  and  October.  The  east- 
ern district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Lee,  Phillips,  Saint  Francis,  Cross,  Monroe,  and  Woodruff, 
which  constitute  the  eastern  division  of  said  district;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the  coun- 
ties of  Independence,  Cleburne,  Stone,  Izard,  Sharp,  and 
Jackson,  which  shall  constitute  the  northern  division  of  said 
district;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Crittenden,  Clay,  Craighead,  Greene, 
Mississippi,  Poinsett,  Fulton,  Randolph,  and  Lawrence, 
which  shall  constitute  the  Jonesboro  division  of  said  district ; 
and  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Arkansas,  Ashley,  Bradley,  Chicot,  Clark, 
Cleveland,  Conway,  Dallas,  Desha,  Drew,  Faulkner,  Garland, 
Urant,  Hot  Spring,  Jefferson,  Lincoln,  Lonoke,  Montgomery, 
Perry,  Pope,  Prairie,  Pulaski,  Saline,  Van  Buren,  and  White, 
which  shall  constitute  the  western  division  of  said  district. 
Terms  of  the  district  court  for  the  eastern  division  shall  be 
held  at  Helena  on  the  second  Monday  in  March  and  the  first 
Monday  in  October;  for  the  northern  division,  at  Batesville 
on  the  fourth  Monday  in  May  and  the  second  Monday  in 
December;  for  the  Jonesboro  division,  at  Jonesboro  on  the 
second  Mondays  in  May  and  November;  and  for  the  west- 
ern division,  at  Little  Rock  on  the  first  Monday  in  April  and 
the  third  Monday  in  October.  The  clerk  of  the  court  for 
the  eastern  district  shall  maintain  an  office  in  charge  of  him- 
self or  a  deputy  at  Little  Rock,  at  Helena,  at  Jonesboro,  and 
at  Batesville,  which  shall  be  kept  open  at  all  times  for  the 
transaction  of  the  business  of  the  court.  And  the  clerk  of 
the  court  for  the  wrestern  district  shall  maintain  an  office  in 


40      MO.Vn;oMKUY's  MANUAL  OF  FEDERAL  PROCEDURE    §  104 

charge  of  himself  or  a  deputy  at  Fort  Smith,  at  Harrison, 
and  at  Texarkana,  which  shall  be  kept  open  at  all  times  for 
the  transaction  of  the  business  of  the  court." 

§  103.  Arizona. 

Act  Oct.  3,  1913,  ch.  11,  38  Stat.  at  L.  203.  "That  the 
state  of  Arizona  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Arizona. 

Sec.  2.  "That  terms  of  the  district  court  shall  be  held  in 
Tucson  on  the  first  Mondays  in  May  and  November;  at 
Phoenix  on  the  first  Mondays  in  April  and  October ;  at  Pres- 
cott  on  the  first  Mondays  in  March  and  September;  and  at 
Globe  on  the  first  Mondays  in  June  and  December.  Causes, 
civil  and  criminal,  may  be  transferred  by  the  court  or  judge 
thereof  from  any  of  the  aforesaid  places,  where  court  shall 
be  held  in  said  district,  to  any  of  the  places  herein  above 
mentioned  in  said  district,  when  the  convenience  of  the  par- 
ties or  the  ends  of  justice  would  be  promoted  by  the  transfer; 
and  any  interlocutory  order  made  by  the  court  or  judge 
thereof  in  any  of  the  above-mentioned  places." 

§  104.  California. 

§  72,  Judicial  Code*  36  Slat,  at  L.  1107,  Comp.  St.  1911  f 
p.  159,  1912  Supp.  F.  S.  A.  v.  1,  p.  163.  "The  state  of  Cali- 
fornia is  divided  into  two  districts,  to  be  known  as  the  north- 
ern and  southern  districts  of  California.  The  southern  dis- 
trict shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Fresno,. 
Invo,  Kern,  Kings,  Madera,  Mariposa,  Merced,  and  Tulare. 
which  shall  constitute  the  northern  division  of  said  district; 
also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Imperial,  Los  Angeles,  Orange,  Riverside,  San 
Bernardino,  San  Diego,  San  Luis  Obispo,  Santa  Barbara,  and 
Ventura,  which  shall  constitute  the  southern  division  of  said 
district.  Terms  of  the  district  court  for  the  northern  division 
shall  be  held  at  Fresno  on  the  first  Monday  in  May  and  the 
second  Monday  in  November ;  and  for  the  southern  division  at 
Los  Angeles,  on  the  second  Monday  in  January  and  the  second 
Monday  in  July,  and  at  San  Diego  on  the  second  Mondays 

c  Drawn  from  §  531.  R.  S.,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  234.  238, 
240,  241.  242,  243,  246,  249,  254,  25(5.  264,  266,  Comp.  St.  1901.  p.  316.  4  F.  S. 
A.  16.  §  572.  R.  S.,  Comp.  St.  1901.  p.  464.  4  F.  S.  A.  665.  §  58fi.  R.  S.T 
4  F.  S.  A.  674,  which  sections  are  repealed  by  §  97,  Judicial  Code,  and  Comp. 
St.  324,  4  F.  S.  A.  20,  4  F.  S.  A.  C95,  and  1909  Supp.  F.  S.  A.  p.  302. 


§    107  JUDICIAL    DISTRICTS TEEMS    AND    LOCALITIES  41 

in  March  and  September.  The  northern  district  shall  in- 
clude the  territory  embraced  on  the  first  day  of  July,  nine- 
teen hundred  and  ten,  in  the  counties  of  Alameda,  Alpine, 
Amador,  Butte,  Calaveras,  Colusa,  Contra  Costa,  Del  Norte, 
El  Dorado,  Glenn,  Humboldt,  Lake,  Lassen,  Marin,  Mendo- 
cino,  Modoc,  Mono,  Monterey,  Napa,  Nevada,  Placer,  Plu- 
mas,  Sacramento,  San  Benito,  San  Francisco,  San  Joaquin, 
San  Mateo,  Santa  Clara,  Santa  Cruz,  Shasta,  Sierra,  Sis- 
kiyou,  Solano,  Sonoma,  Stanislaus,  Sutter,  Tehama,  Trinity, 
Tuolumne,  Yolo,  and  Yuba.  Terms  of  the  district  court 
for  the  northern  district  shall  be  held  at  San  Francisco  on 
the  first  Monday  in  March,  the  second  Monday  in  July,  and 
the  first  Monday  in  November ;  at  Sacramento  on  the  second 
Monday  in  April;  and  at  Eureka  on  the  third  Monday  in 
July."' 

§  105.  Colorado. 

§  73,  Judicial  Code*  36  8  tat.  at  L.  1108,  Comp.  St.  1911, 
p.  160,  1912  Supp.  F.  S.  A.  v.  1,  p.  164.  "The  state  of  Col- 
orado shall  constitute  one  judicial  district,  to  be  known  as 
the  district  of  Colorado.  Terms  of  the  district  court  shall 
be  held  at  Denver  on  the  first  Tuesdays  in  May  and  No- 
vember ;  at  Pueblo  on  the  first  Tuesday  in  April ;  and  at  Mon- 
trose  on  the  second  Tuesday  in  September." 

§  106.  Connecticut. 

§  74,  Judicial  Code*  36  Stat.  at  L.  1108,  Comp.  St.  1911, 
p.  160,  1912  Supp.  F.  S.  A.  v.  1,  p.  164.  "The  state  of  Con- 
necticut shall  constitute  one  judicial  district,  to  be  known  as 
the  district  of  Connecticut.  Terms  of  the  district  court  shall 
be  held  at  New  Haven  on  the  fourth  Tuesdays  in  February 
and  September,  and  at  Hartford  on  the  fourth  Tuesday  in 
May  and  the  first  Tuesday  in  December." 

§  107.  Delaware. 

§  75,  Judicial  Code,1  36  Stat.  at  L.  1108,  Comp.  St.  1911, 
p.  160,  1912  Supp.  F.  S.  A.  v.  1,  p.  164-  "The  state  of  Del- 

*  Re-enacting  19  Stat.  at  L.  61,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  223,  234, 
Comp.  St.  1901,  p.  328,  4  F.  S.  A.  22. 

e  Re-enacting  §  531,  R.  S.  (see  Ref.  §  104,  supra)  Comp.  St.  1901,  p.  310, 
4  F.  S.  A.  16,  as  to  Connecticut. 

f  Re-enacting  §  531,  R.  S.  (see  Ref.  §  104,  supra)  Comp.  St.  1901,  p.  310, 
4  F.  S.  A.  16,  as  to  Delaware 


42          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  109 

aware  shall  constitute  one  judicial  district,  to  be  known  as 
the  district  of  Delaware.  Terms  of  the  district  court  shall 
be  held  at  Wilmington  on  the  second  Tuesdays  in  March, 
June,  September,  and  December." 

§  108.  Florida. 

§  16,  Judicial  Code?  36  Stat.  at  L.  1108,  Comp.  St.  1911, 
p.  160, 1912  Supp.  F.  8.  A.  v.  1,  p.  164.  "The  state  of  Flori- 
da is  divided  into  two  districts,  to  be  known  as  the  northern 
and  southern  districts  of  Florida.  The  southern  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nine- 
teen hundred  and  ten,  in  the  counties  of  Baker,  Bradford, 
Brevard,  Citrus,  Clay,  Columbia,  Dade,  De  Soto,  Duva, 
Hamilton,  Hernando,  Hillsboro,  Lake,  Lee,  Madison,  Man- 
atee, Marion,  Monroe,  Xassau,  Orange,  Osceola,  Palm 
Beach,  Pasco,  Polk,  Putnam,  Saint  John,  Sumter,  Suwanee, 
Saint  Lucie,  and  Volusia.  Terms  of  the  district  court  for 
the  southern  district  shall  be  held  at  Ocala  on  the  third  Mon- 
day in  January;  at  Tampa  on  the  second  Monday  in  Feb- 
ruary; at  Key  West  on  the  first  Mondays  in  May  and  Novem- 
ber; at  Jacksonville  on  the  fii'st  Monday  in  December;  at 
Fernandina  on  the  first  Monday  in  April ;  and  at  Miami  on 
the  fourth  Monday  in  April.  The  district  court  for  the 
southern  district  shall  be  open  at  all  times  for  the  purpose 
of  hearing  and  deciding  causes  of  admiralty  and  maritime 
jurisdiction.  The  northern  district  shall  include  the  terri- 
tory embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Alachua,  Calhoun,  Escambia,  Frank- 
lin, Gadsden,  Holmes,  Jackson,  Jefferson,  Lafayette,  Leon, 
Levy,  Liberty,  Santa  Rosa,  Taylor,  Wakulla,  Walton,  and 
Washington.  Terms  of  the  district  court  for  the  northern 
district  shall  be  held  at  Tallahassee  on  the  second  Monday  in 
January ;  at  Pensacola  on  the  first  Mondays  in  May  and  Xo- 
vember ;  at  Marianna  on  the  first  Monday  in  April ;  and  at 
Gainesville  on  the  second  Mondays  in  June  and  December." 

§  109.  Georgia. 

§  77,  Judicial  Code*  36  Stat.  at  L.   1108,  Comp.  St. 

K  Re-enacting  §  534.  R.  S.,  Foster's  Fed.  Prac.  (4th  ed.)  p.  234,  Comp. 

St.  ]901,  p.  331,  4  F.  S.  A.  22,  and  amendments  thereto.  20  Stat.  at  L.  280, 
28  Stat.  at  L.  117. 

h  Re-enacting   §   535,   R.   S.,   Foster's   Fed.   Prac.    (4th  ed.)    p.  236,   Comp. 


§    109  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  43 

1911,  p.  161,  1912  Supp.  F.  8.  A.  v.  1,  p.  165,  as  amended 
March  4,  1913,  ch.  167,  37  Stat.  at  L.  1017.  "The  state 
of  Georgia  is  divided  into  two  districts,  to  be  known  as  the 
northern  and  southern  districts  of  Georgia.  The  northern 
district  shall  include  the  territory  embraced  on  the  first  day 
of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Camp- 
bell, Carroll,  Clayton,  Cobb,  Coweta,  Cherokee,  Dekalb, 
Douglas,  Dawson,  Fannin,  Fayette,  Fulton,  Forsyth,  Gilmer, 
Gwinnett,  Hall,  Henry,  Lumpkin,  Milton,  Newton,  Pickens, 
Rockdale,  Spalding,  Towns,  and  Union,  which  shall  con- 
stitute the  northern  division  of  said  district;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  counties  of 
Banks,  Clarke,  Elbert,  Franklin,  Greene,  Habersham,  Hart, 
Jackson,  Morgan,  Madison,  Ogiethorpe,  Oconee,  Rabun, 
Stephens,  Walton,  and  White,  which  shall  constitute  the  east- 
ern division  of  said  district ;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Chattahoochee,  Clay, 
Early,  Harris,  Heard,  Meriwether,  Marion,  Muscogee,  Quit- 
man,  Randolph,  Schley,  Stewart,  Talbot,  Taylor,  Terrell, 
Troup,  and  Webster,  which  shall  constitute  the  western  divi- 
sion of  said  district ;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Bartow,  Chattooga,  Catoosa, 
Dade,  Floyd,  Gordon,  Haralson,  Murray,  Paulding,  Polk, 
Walker,  and  Whitfield,  which  shall  constitute  the  north- 
western division  of  said  district.  Terms  of  the  district 
court  for  northern  division  of  said  district  shall  be  held 
at  Atlanta  on  the  second  Monday  in  March  and  the 
first-  Monday  in  October  and  at  Gainsville  on  the  fourth 
Mondays  in  April  and  November,  and  it  shall  be  the  duty 
of  the  judge  to  assign  such  cases,  both  civil  and  criminal,  as 
may  in  his  judgment  be  most  convenient  to  the  parties  to 
said  cases,  and  as  may  be  in  the  interest  of  economical  ex- 
penditures by  the  government;  for  the  eastern  division 
at  Athens  on  the  second  Monday  in  April  and  the  first 
Monday  in  November;  for  the  western  division,  at 
Columbus  on  the  first  Mondays  in  May  and  December; 
and  for  the  northwestern  division,  at  Rome  on  the  third 
Mondays  in  May  and  November.  The  clerk  of  the 
court  for  the  northern  district  shall  maintain  an  oifice  in 

St.  1901,  p.  333.  4  F.  S.  A.  23,  as  amended  by  21  Stat.  at  L.  62,  63,  25  Stat.  at 
L.  071-2,  26  Stat.  at  L.  1110,  31  Stat.  at  L.  74,  31  Stat.  at  L.  818-9,  32  Stat. 
at  L.  42,  32  Stat.  at  L.  550. 


44          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  110 

charge  of  himself  or  a  deputy  at  Athens,  at  Columbus, 
and  at  Rome,  which  shall  be  kept  open  at  all  times  for  the 
transaction  of  the  business  of  the  court.  The  southern  dis- 
trict shall  include  the  territory  embraced  on  the  said  first  day 
of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Appling, 
Bulloch,  Bryan,  Camden,  Chatham,  Emanuel,  Effingham, 
Glynn,  Jeff  Davis,  Liberty,  Montgomery,  Mclntosh,  Screven, 
Tatnall,  Toombs,  and  Wayne,  which  shall  constitute  the 
eastern  division  of  said  district;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Baldwin,  Bibb, 
Butts,  Crawford,  Dodge,  Dooly,  Hancock,  Houston,  Jasper, 
Jones,  Laurens,  Macon,  Monroe,  Pike,  Pulaski,  Putnam, 
Sumter,  Telfair,  Twiggs,  Upson,  Wilcox,  and  Wilkinson, 
which  shall  constitute  the  western  division ;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  counties  of 
Burke,  Columbia,  Glascock,  Jefferson,  Jenkins,  Johnson, 
Lincoln,  McDuffie,  Richmond,  Taliaferro,  Washington, 
Wilkes,  and  Warren,  which  shall  constitute  the  northeast- 
ern division ;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Berrien,  Brooks,  Charlton, 
Clinch,  Coffee,  Decatur,  Echols,  Grady,  Irwin.  Lowndes, 
Pierce,  and  Ware,  which  shall  constitute  the  southwestern 
division ;  and  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Baker,  Ben  Hill,  Calhoun, 
Crisp,  Colquitt,  Dougherty,  Lee,  Miller,  Mitchell,  Thomas, 
Tift,  Turner,  and  Worth,  which  shall  constitute  the  Albany 
division.  Terms  of  the  district  court  for  the  western  divi- 
sion shall  be  held  at  Macon  on  the  first  Mondays  in  May  and 
October;  for  the  eastern  division,  at  Savannah  on  the  second 
Tuesdays  in  February,  May,  August,  and  November;  for 
the  northeastern  division,  at  Augusta  on  the  firsf  Monday  in 
April  and  the  third  Monday  in  November;  for  the  south- 
western division,  at  Valdosta  on  the  second  Mondays  in 
June  and  December;  and  for  the  Albany  division,  at  Albany 
on  the  third  Mondays  in  June  and  December." 

§  110.  Idaho. 

§  78,  Judicial  Code*  36  Stat.  at  L.  1109,  Comp.  St.  1911, 
p.  162,  1912  Supp.  F.  S.  A.  v.  1,  p.  166.  "The  state  of 
Idaho  shall  constitute  one  judicial  district,  to  be  known  as  the 

1  Re-enacting  27   Stat.  at  L.  72.  Foster's  Fed.  Prac.    (4th  ed.)    p.  237,  30 
Rtat.  at  L.  423,  Comp.  St   1901,  342,  4  F.  S.  A.  26,  27. 


§    111  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  45 

district  of  Idaho.  It  is  divided  into  four  divisions,  to  be 
known  as  the  northern,  central,  southern,  and  eastern  divi- 
sions. The  territory  embraced  on  the  first  day  of  July,  nine- 
teen hundred  and  ten,  in  the  counties  of  Bonner,  Kootenai, 
and  Shoshone,  shall  constitute  the  northern  division  of  said 
district ;  and  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Idaho,  Latah,  and  Nez  Perce,  shall 
constitute  the  central  division  of  said  district ;  and  the  terri- 
tory embraced  on  the.  date  last  mentioned  in  the  counties  of 
Ada,  Boise,  Elaine,  Cassia,  Twin  Falls,  Canyon,  Elmore, 
Lincoln,  Owyhee,  and  Washington,  shall  constitute  the  south- 
ern division  of  said  district;  and  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Bannock,  Bear  Lake, 
Bingham,  Custer,  Fremont,  Lemhi,  and  Oneida,  shall  consti- 
tute the  eastern  division  of  said  district.  Terms  of  the  dis- 
trict court  for  the  northern  division  of  said  district  shall  be 
held  at  Coeur  d'Alene  City  on  the  fourth  Monday  in  May  and 
the  third  Monday  in  November;  for  the  central  division,  at 
Moscow  on  the  second  Monday  in  May  and  the  first  Monday 
in  November;  for  the  southern  division,  at  Boise  City  on 
the  second  Mondays  in  February  and  September;  and  for  the 
eastern  division,  at  Pocatello  on  the  second  Mondays  in  March 
and  October.  The  clerk  of  the  court  shall  maintain  an  office 
in  charge  of  himself  or  a  deputy  at  Coeur  d'Alene  City,  at 
Moscow,  at  Boise  City,  and  at  Pocatello,  which  shall  be 
open  at  all  times  for  the  transaction  of  the  business  of  the 
court." 

§  111.  Illinois. 

§  79,  Judicial  Code?  36  Stat.  at  L.  1110,  Comp.  St.  1911, 
p.  163,  1912  Supp.  F.  S.  A.  v.  1,  p.  166.  "The  state  of 
Illinois  is  divided  into  three  districts,  to  be  known  as  the 
northern,  southern,  and  eastern  districts  of  Illinois.  The 
northern  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Cook,  Dekalb,  Dupage,  Grundy^  Kane,  Kendall,  Lake,  La- 
salle,  McHenry,  and  Will,  wrhich  shall  constitute  the  eastern 
division;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Boone,  Carroll,  Jo  Daviess,  Lee, 

J  Re-enacting  §  536,  R.  S.,  Rose's  Code,  §  415,  Foster's  Fed.  Prac.  (4th 
ed.)  p.  2.38,  Comp.  St.  .190],  p.  344,  4  F.  S.  A.  27,  with  amendments  thereto, 
24  Stat.  at  L.  442. 


46          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  111 

Ogle,  Stephenson,  Whiteside,  and  Winnebago,  which  shall 
constitute  the  western  division.  Terms  of  the  district  court 
for  the  eastern  division  shall  be  held  at  Chicago  on  the  first 
Mondays  in  February,  March,  April,  May,  June,  July,  Sep- 
tember, October,  and  November,  and  the  third  Monday  in  I  )«'- 
cember;  and  for  the  western  division,  at  Freeport  on  the  third 
Mondays  in  April  and  October.  The  clerk  of  the  court  for 
the  northern  district  shall  maintain  an  office  in  charge  of  him- 
self or  a  deputy  at  Chicago  and  at  Freeport,  which  shall  be 
kept  open  at  all  times  for  the  transaction  of  the  business  of 
the  court.  The  marshal  for  the  northern  district  shall  main- 
tain an  office  in  the  division  in  which  he  himself  does  not 
reside,  and  shall  appoint  at  least  one  deputy  Avho  shall  reside 
therein.  The  southern  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten, 
in  the  counties  of  Bureau,  Fulton,  Henderson,  Henry,  Knox, 
Livingston,  McDonough,  Marshall,  Mercer,  Putnam,  Peoria, 
Rock  Island,  Stark,  Tazewell,  Warren,  and  Woodford,  which 
shall  constitute  the  northern  division ;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Adams, 
Bond,  Brown,  Calhoun,  Cass,  Christian,  Dewitt,  Greene, 
Hancock,  Jersey,  Logan,  McLean,  Macon,  Macoupin,  Madi- 
son, Mason,  Menard,  Montgomery,  Morgan,  Pike,  Sangamon, 
Schuyler,  and  Scott,  which  shall  constitute  the  southern  divi- 
sion. Terms  of  the  district  court  for  the  northern  division 
shall  be  held  at  Peoria  on  the  third  Mondays  in  April  and  Oc- 
tober; for  the  southern  division,  at  Springfield  on  the  first 
Mondays  in  January  and  June,  and  at  Quincy  on  the  first 
Mondays  in  March  and  September.  The  clerk  of  the  court  for 
the  southern  district  shall  maintain  an  office  in  charge  of  him- 
self or  a  deputy  at  Peoria,  at  Springfield,  and  at  Quincy, 
which  shall  be  kept  open  at  all  times  for  the  transaction  of  the 
business  of  the  court.  The  marshal  for  said  southern  district 
shall  appoint  at  least  one  deputy  residing  in  the  said  northern 
district,  who  shall  maintain  an  office  at  Peoria.  The  eastern 
district  shall  include  the  territory  embraced  on  the  first  day 
of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Alex- 
ander, Champaign,  Clark,  Clay,  Clinton,  Coles,  Crawford, 
Cumberland,  Douglas,  Edgar,  Edwards,  Effingham,  Fayette, 
Ford,  Franklin,  Gallatin,  Hamilton,  Hardin,  Iroquois,  Jack- 
son, Jasper,  Jefferson,  Johnson,  Kankakee,  Lawrence,  Mar- 
ion, Massac,  Monroe,  Moultrie,  Perry,  Piatt,  Pope,  Pulaski, 
Randolph,  Richland,  Saint  Clair,  Saline,  Shelby,  Union, 
Vermilion,  Wabash,  Washington,  Wayne,  White,  and  Wil- 


§    113  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  47 

liamson.  Terms  of  the  district  court  for  the  eastern  district 
shall  be  held  at  Danville  on  the  first  .Mondays  in  March  and 
September;  at  Cairo  on  the  first  Mondays  in  April  and  Octo- 
ber; and  at  East  Saint  Louis  on  the  first  Mondays  in  May 
and  November.  The  clerk  of  the  court  for  the  eastern  dis- 
trict shall  maintain  an  office  in  charge  of  himself  or  a  deputy 
at  Danville,  at  Cairo,  and  at  East  Saint  Louis,  which  shall 
be  kept  open  at  all  times  for  the  transaction  of  the  business 
of  the  court,  and  shall  there  keep  the  records,  files,  and  docu- 
ments pertaining  to  the  court  at  that  place." 

§  112.  Indiana. 

§  80,  Judicial  Code*  36  Stat.  at  L.  1110,  Comp.  St.  1911, 
p.  164,  1912  Supp.  F.  S.  A.  v.  1,  p.  168.  "The  state  of 
Indiana  shall  constitute  one  judicial  district,  to  be  known  as 
the  district  of  Indiana.  Terms  of  the  district  court  shall  be 
held  at  Indianapolis  on  the  first  Tuesdays  in  May  and 
November ;  at  New  Albany  on  the  first  Mondays  in  January 
and  July;  at  Evansville  on  the  first  Mondays  in  April  and 
October ;  at  Fort  Wayne  on  the  second  Tuesdays  in  June  and 
December ;  and  at  Hammond  on  the  third  Tuesdays  in  April 
and  October.  The  clerk  of  the  court  shall  appoint  four 
deputy  clerks,  one  of  whom  shall  reside  and  keep  his  office 
at  New  Albany,  one  at  Evansville,  one  at  Fort  Wayne,  and 
one  at  Hammond.  Each  deputy  shall  keep  in  his  office  full 
records  of  all  actions  and  proceedings  of  the  district  court 
held  at  that  place." 

§  113.  Iowa. 

§  81,  Judicial  Code,1  36  Stat.  at  L.  1111,  Comp.  St.  1911, 
p.  164,  1912  Supp.  F.  S.  A.  v.  1,  p.  168,  as  .amended  act 
March  8,  1913,  37  Stat.  at  L.  735.  "The  state  of  Iowa 
is  divided  into  two  judicial  districts,  to  be  known  as 
the  northern  and  southern  districts  of  Iowa.  The  northern 
district  shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Alla- 
makee,  Dubuquc,  Buchanan,  Clayton,  Delaware,  Fayette, 
Winneshiek,  Howard,  Chickasaw,  Brerner,  Blackhawk,  Floyd, 

k  Re-enactinjr  §  531,  R.  S.  (see  Ref.  §  104,  supra)  Comp.  St.  1901,  p. 
316,  4  F.  S.  A.  16. 

1  Re-enacting  act  of  July  20,  1822,  ch.  312.  22  Stat.  at  L.  172,  Comp.  St. 
1901,  p.  316,  with  amendments  thereto,  26  Stat.  at  L.  767,  Foster's  Fed. 
Prac.  (4th  ed.)  240,  31  Stat.  at  L.  249,  4  F.  S.  A.  28-30. 


48          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  113 

Mitchell,  and  Jackson,  which  shall  constitute  the  eastern 
division  of  said  district ;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Jones,  Cedar,  Linn, 
Johnson,  Iowa,  Benton,  Tama,  Grundy,  and  Ilardin,  which 
shall  constitute  the  Cedar  Eapids  division ;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Em- 
met, Palo  Alto,  Pochahontas,  Calhoun,  Carroll,  Kossuth. 
Humboldt,  Webster,  Winnebago,  Hancock,  Wright,  Hamilton, 
Worth,  Cerro  Gordo,  Franklin,  and  Butler,  which  shall  con- 
stitute the  central  division ;  also  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Dickinson,  Clay, 
Buena  Vista,  Sac,  Osceola,  O'Brien,  Cherokee,  Ida,  Lyon, 
Sioux,  Plymouth,  Woodbury,  and  Monona,  which  shall  con- 
stitute the  western  division.  Terms  of  the  district  court  for 
the  eastern  division  shall  be  held  at  Dubuque  on  the  fourth 
Tuesday  in  April  and  the  first  Tuesday  in  December  and  at 
Waterloo  on  the  second  Tuesdays  in  May  and  September; 
for  the  Cedar  Rapids  division,  at  Cedar  Rapids  on  the 
first  Tuesday  in  April  and  the  fourth  Tuesday  in  Septem- 
ber; for  the  central  division,  at  Fort  Dodge  on  the  second 
Tuesdays  in  June  and  November;  and  for  the  western 
division,  at  Sioux  City  on  the  fourth  Tuesday  in  May  and 
the  third  Tuesday  in  October.  The  southern  district  shall 
include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten,  in  the  counties  of  Louisa,  Henry, 
Des  Moines,  Lee,  and  Van  Buren,  which  shall  constitute  the 
eastern  division  of  said  district;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Marshall,  Story, 
Boone,  Greene,  Guthrie,  Dallas,  Polk,  Jasper,  Poweshiek, 
Marion,  Warren,  and  Madison,  which  shall  constitute  the  cen- 
tral division  of  said  district;  also  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Crawford, 
Harrison,  Shelby,  Audubon,  Cass,  Pottawattamie,  Mills,  and 
Montgomery,  which  shall  constitute  the  western  division  of 
said  district;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Adair,  Adams,  Clarke,  Decatur, 
Fremont,  Lucas,  Page,  Ringgold,  Taylor,  L'nion,  and  Wayne, 
which  shall  constitute  the  southern  division  of  said  district; 
also  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Scott,  Muscatine,  Washington,  and  Clinton, 
which  shall  constitute  the  Davenport  division  of  said  district ; 
also  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Davis,  Appanoose,  Mahaska,  Keokuk,  Jef- 
ferson, Monroe,  and  Wapello,  which  shall  constitute  the 


§114:  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  49 

Ottumwa  division  of  said  court.  Terms  of  the  district 
court  for  the  eastern  division  shall  be  held  at  Keokuk  on  the 
second  Tuesday  in  April  and  the  third  Tuesday  in  October; 
for  the  central  division,  at  Des  Moines  on  the  second  Tuesday 
in  May  and  the  third  Tuesday  in  November ;  for  the  western 
division,  at  Council  Bluffs  on  the  second  Tuesday  in  March 
and  the  third  Tuesday  in  September;  for  the  southern 
division,  at  Creston  on  the  fourth  Tuesday  in  March  and 
the  first  Tuesday  in  November;  for  the  Davenport  division, 
at  Davenport  on  the  fourth  Tuesday  in  April  and  the  first 
Tuesday  in  October;  and  for  the  Ottumwa  division,  at  Ot- 
tumwa on  the  first  Monday  after  the  fourth  Tuesday  in 
March,  and  the  first  Monday  after  the  third  Tuesday  in 
October.  The  clerk  of  the  court  for  said  district  shall  main- 
tain an  office  in  charge  of  himself  or  a  deputy  at  Daven- 
port and  at  Ottumwa,  for  the  transaction  of  the  business  of 
said  divisions." 

§  114.  Kansas. 

§  82 f  Judicial  Code,™  36  8 tat.  at  L.  1112,  Comp.  St. 
1911,  p.  165,  1912  Supp.  F.  8.  A.  v.  1,  p.  168.  "The  state 
of  Kansas  shall  constitute  one  judicial  district,  to  be  known 
as  the  district  of  Kansas.  It  is  divided  into  three  divisions, 
to  be  known  as  the  first,  second,  and  third  divisions  of  the 
district  of  Kansas.  The  first  division  shall  include  the 
territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Atchison,  Brown,  Chase,  Chey- 
enne, Clay,  Cloud,  Decatur,  Dickinson,  Doniphan,  Douglas, 
Ellis,  Franklin,  Geary,  Gove,  Graham,  Jackson,  Jefferson, 
Jewell,  Johnson,  Leavenworth,  Lincoln,  Logan,  Lyon, 
Marion,  Marshall,  Mitchell,  Morris,  Nemaha,  Norton,  Os- 
age,  Osborne,  Ottawa,  Phillips,  Pottawatomie,  Rawlins,  Re- 
public, Riley,  Rooks,  Russell,  Saline,  Shawnee,  Sheridan, 
Sherman,  Smith,  Thomas,  Trego,  Wabaunsee,  Wallace, 
Washington,  and  Wyandotte.  The  second  division  shall 
include  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Barber,  Barton,  Butler,  Clark,  Comanche, 
Cowley,  Edwards,  Ellsworth,  Finney,  Ford,  Grant,  Gray, 
Greeley,  Hamilton,  Harper,  Harvey,  Hodgeman,  Haskell, 
Kingman,  Kiowa,  Kearny,  Lane,  McPherson,  Morton, 

n»  Re-enacting  act  of  June  9,  1890,  ch.  403,  26  Stat.  at  L.  129,  with  amend- 
ments thereto,  27  Stat.  at  L.  24,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  208,  240, 
4  F.  S.  A.  31. 

Montg. — 4. 


50          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  115 

Meade,  Kess,  Pratt,  Pawnee,  Eeno,  Rice,  Rush,  Scott,  Sedg- 
wick,  Stafford,  Stevens,  Seward,  Sumner,  Stanton,  and 
Wichita.  The  third  division  shall  include  the  territory  em- 
braced on  the  said  date  last  mentioned  in  the  counties  of 
Allen,  Anderson,  Bourbon,  Cherokee,  Coffey,  Chautauqua, 
Crawford,  Elk,  Greenwood,  Labette,  Linn,  Miami,  Mont- 
gomery, Xeosho,  Wilson,  and  Woodson.  Terms  of  the  dis- 
trict court  for  the  first  division  shall  be  held  at  Leavenworth 
on  the  second  Monday  in  October;  at  Topeka  on  the  second 
Monday  in  April ;  at  Kansas  City  on  the  second  Monday 
in  January  and  the  first  Monday  in  October;  and  at  Salina 
on  the  second  Monday  in  May;  but  no  cause,  action,  or  pro- 
ceeding shall  be  tried  or  considered  at  any  term  held  at 
Salina  unless  by  consent  of  all  the  parties  thereto,  or  by 
order  of  the  court  for  cause.  Terms  of  the  district  court 
for  the  second  division  shall  be  held  at  Wichita  on  the  second 
Mondays  in  March  and  September;  and  for  the  third  di- 
vision, at  Fort  Scott  on  the  first  Monday  in  May  and  the 
second  Monday  in  November.  The  clerk  of  the  district 
court  shall  appoint  two  deputies,  one  of  whom  shall  reside 
and  keep  his  office  at  Fort  Scott,  and  the  other  at  Wichita ; 
and  the  marshal  shall  appoint  a  deputy  who  shall  reside  and 
keep  his  office  at  Fort  Scott." 

§  115.  Kentucky. 

§  83,  Judicial  Code?  36  Stat.  at  L.  1112,  Comp.  St. 
1911,  p.  166,  1912  Supp.  F.  S.  A.  v.  1,  p.  170.  "The  state 
of  Kentucky  is  divided  into  two  districts,  to  be  known  as 
the  eastern  and  western  districts  of  Kentucky.  The  eastern 
district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Carroll,  Trimble,  Henry,  Shelby,  Anderson,  Mercer,  Boyle, 
Gallatin,  Boone,  Kenton,  Campbell,  Pendleton,  Grant, 
Owen,  Franklin,  Bourbon,  Scott,  Woodford,  Fayette,  Jes- 
samine, Garrard,  Madison,  Lincoln,  Rockcastle,  Pulaski, 
WTayne,  Whitley,  Bell,  Knox,  Harlan,  Laurel,  Clay,  Leslie, 
Letcher,  Perry,  Owsley,  Jackson,  Estill,  Lee,  Breathitt, 
Knott,  Pike,  Floyd,  Magoffin,  Martin,  Johnson,  Lawrence, 
Boyd,  Greenup,  Carter,  Elliott,  Morgan,  Wolfe,  Powell, 
Menifee,  Clark,  Montgomery,  Bath,  Rowan,  Lewis,  Flem- 
ing, Mason,  Bracken,  Robertson,  Nicholas,  and  Harrison, 

n  Re-enacting  §  531,  R.  S.  (see  Ref.  §  104.  supra)  Comp.  St.  1901,  p. 
360,  4  F.  S.  A.  16.  with  amendments  thereto,  2;>  Stat.  at  L.  389,  31  Stat.  at  L. 
781-2-3,  4  F.  S.  A. -31,  32. 


§    115          JUDICIAL    DISTKICTS TERMS    AND    LOCALITIES  51 

with  the  waters  thereof.  Terms  of  the  district  court  for  the 
eastern  district  shall  be  held  at  Frankfort  on  the  second 
Monday  in  March  and  the  fourth  Monday  in  September; 
at  Covington  on  the  first  Monday  in  April  and  the  third 
Monday  in  October;  at  Richmond  on  the  fourth  Monday  in 
April  and  the  second  Monday  in  November;  at  London  on 
the  second  Monday  in  May  and  the  fourth  Monday  in 
November;  at  Catlettsburg  on  the  fourth  Monday  in  May 
and  the  second  Monday  in  December;  and  at  Jackson  on 
the  first  Monday  in  March  and  the  third  Monday  in  Sep- 
tember: Provided,  That  suitable  rooms  and  accommodations 
are  furnished  for  holding  court  at  Jackson,  free  of  expense 
to  the  government  until  such  time  as  a  public  building 
shall  be  erected  there.  The  western  district  shall  include  the 
territory  embraced  on  the  first  day  of  July,  nineteen  hun- 
dred and  ten,  in  the  counties  of  Oldham,  Jefferson,  Spencer, 
Bullitt,  Nelson,  Washington,  Marion,  Larue,  Taylor,  Cassey, 
Green,  Adair,  Russell,  Clinton,  Cumberland,  Monroe,  Met- 
calfe,  Allen,  Barren,  Simpson,  Logan,  Warren,  Butler,  Hart, 
Edmonson,  Grayson,  Hardin,  Meade,  Breckinridge,  Han- 
cock, Daviess,  Ohio,  McLean,  Muhlenberg,  Todd,  Christian, 
Trigg,  Lyon,  Caldwell,  Livingston,  Crittenden,  Hopkins, 
Webster,  Henderson,  Union,  Marshall,  Calloway,  Mc- 
Cracken,  Graves,  Ballard,  Carlisle,  Hickman,  and  Fulton, 
with  the  waters  thereof.  Terms  of  the  district  court  for  the 
western  district  shall  be  held  at  Louisville  on  the  second 
Mondays  in  March  and  October;  at  Owensboro  on  the  first 
Monday  in  May  and  the  fourth  Monday  in  November;  at 
Paducah  on  the  third  Mondays  in  April  and  November ; 
and  at  Bowling  Green  on  the  third  Monday  in  May  and  the 
second  Monday  in  December.  The  clerk  of  the  court  for 
the  eastern  district  shall  maintain  an  office  in  charge  of  him- 
self or  a  deputy  at  Frankfort,  at  Covington,  at  Richmond, 
at  London,  at  Catlettsburg,  and  at  Jackson;  and  the  clerk 
for  the  western  district  shall  maintain  an  office  in  charge  of 
himself  or  a  deputy  at  Louisville,  at  Oweusboro,  at  Paducah, 
and  at  Bowling  Green,  each  of  which  offices  shall  be  kept 
open  at  all  times  for  the  transaction  of  the  business  of  said 
court.  The  clerks  of  the  courts  for  the  eastern  and  western 
districts,  upon  issuing  original  process  in  a  civil  action,  shall 
make  it  returnable  to  the  court  nearest  to  the  county  of  the 
residence  of  the  defendant,  or  of  that  defendant  whose  county 
is  nearest  to  a  court,  and  shall,  immediately  upon  payment 
by  the  plaintiff  of  his  fees  accrued,  send  the  papers  filed  to 


52          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  116 

the  clerk  of  the  court  to  which  the  process  is  made  return- 
able; and  whenever  the  process  is  not  thus  made  returnable, 
any  defendant  may,  upon  motion,  on  or  before  the  calling  of 
the  cause,  have  it  transferred  to  the  court  to  which  it  should 
have  been  sent  had  the  clerk  known  the  residence  of  the 
defendant  when  the  action  was  brought." 

§  116.  Louisiana. 

§  84,  Judicial  Code,™  36  8 tat.  at  L.  1113,  Comp.  St. 
1911,  p.  167,  1912  Supp.  F.  S.  A.  v.  1,  p.  171.  "The  state 
of  Louisiana  is  divided  into  two  judicial  districts,  to  be 
known  as  the  eastern  and  western  districts  of  Louisiana. 
The  eastern  district  shall  include  the  territory  embraced  on 
the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
parishes  of  Assumption,  Iberia,  Jefferson,  Lafourche,  Or- 
leans, Plaquemines,  Saint  Bernard,  Saint  Charles,  Saint 
James,  Saint  John  the  Baptist,  Saint  Mary,  Saint  Tam- 
many, Tangipahoa,  Terrebonne,  and  Washington,  which 
shall  constitute  the  New  Orleans  division;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  parishes  of 
Ascension,  East  Baton  Rouge,  East  Feliciana,  Livingston, 
Pointe  Coupee,  Saint  Helena,  West  Baton  Rouge,  Iberville, 
and  West  Feliciana,  which  shall  constitute  the  Baton  Rouge 
division  of  said  district.  Terms  of  the  district  court  for  the 
New  Orleans  division  shall  be  held  at  New  Orleans  on  the 
third  Mondays  in  February,  May,  and  November;  and  for 
the  Baton  Rouge  division,  at  Baton  Rouge  on  the  second 
Mondays  in  April  and  November.  The. clerk  of  the  court  for 
the  eastern  district  shall  maintain  an  office  in  charge  of 
himself  or  a  deputy  at  New  Orleans  and  at  Baton  Rouge 
which  shall  be  kept  open  at  all  times  for  the  transaction  of 
the  business  of  the  court.  The  western  district  shall  include 
the  territory  embraced  on  the  first  day  of  July,  nineteen  hun- 
dred and  ten,  in  the  parishes  of  Saint  Landry,  Evangeline, 
Saint  Martin,  Lafayette,  and  Vermilion,  which  shall  con- 
stitute the  Opelousas  division  of  said  district ;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  parishes  of 
Rapides,  Avoyelles,  Catahoula,  La  Salle,  Grant,  and  Winn, 
which  shall  constitute  the  Alexandria  division  of  said  dis- 
trict; also  the  territory  embraced  on  the  said  date  last  men- 
tioned in  the  parishes  of  Caddo,  De  Soto,  Bossier,  Webster, 

««  Re-enacting  act  of  March  3,  1881,  ch.  144,  21  Stat.  at  L.  507,  Comp. 
St.  1901,  p.  363,  with  amendments  thereto,  25  Stat.  at  L.  388.  Foster's  Fed. 
Prac.  (4th  ed.)  pp.  208,  241,  242,  25  Stat.  at  L.  438,  4  F.  S.  A.  33. 


§    118  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  53 

Claiborne,  Bienville,  Natch  itoches,  Sabine,  and  Red  River, 
which  shall  constitute  the  Shreveport  division  of  said  dis- 
trict ;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  parishes  of  Ouachita,  Franklin,  Richland, 
Morehouse,  East  Carroll,  West  Carroll,  Madison,  Tensas, 
Concordia,  Union,  Caldwell,  Jackson,  and  Lincoln,  which 
shall  constitute  the  Monroe  division  of  said  district;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the 
parishes  of  Acadia,  Calcasieu,  Cameron,  and  Vernon,  which 
shall  constitute  the  Lake  Charles  division  of  said  district. 
Terms  of  the  district  court  for  the  Opelousas  division  shall 
be  held  at  Opelousas  on  the  first  Mondays  in  January  and 
June;  for  the  Alexandria  division,  at  Alexandria  on  the 
fourth  Mondays  in  January  and  June;  for  the  Shreveport 
division,  at  Shreveport  on  the  third  Mondays  in  February 
and  October;  for  the  Monroe  division,  at  Monroe  on  the 
first  Mondays  in  April  and  October ;  and  for  the  Lake 
Charles  division,  at  Lake  Charles  on  the  third  Mondays  in 
May  and  December.  The  clerk  of  the  court  for  the  western 
district  shall  maintain  an  office  in  charge  of  himself  or  a 
deputy  at  Opelousas,  at  Alexandria,  at  Shreveport,  at  Mon- 
roe, and  at  Lake  Charles,  which  shall  be  kept  open  at  all 
times  for  the  transaction  of  the  business  of  the  court." 

§  117.  Maine. 

§  85,  Judicial  Code,0  36  Stat.  at  L.  1114,  Comp.  St. 
1911,  p.  168,  1912  Supp.  F.  S.  A.  v.  1,  p.  171,  as  amended 
act  Dec.  22,  1911,  cli.  7,  37  Stat.  at  L.  51.  "The  state  of 
Maine  shall  constitute  one  judicial  district,  to  be  known  as 
the  district  of  Maine.  Terms  of  the  district  court  shall  be 
held  at  the  times  and  places  following:  At  Portland,  on  the 
first  Tuesday  in  April,  on  the  third  Tuesday  in  September, 
and  on  the  second  Tuesday  in  December;  at  Bangor,  on  the 
first  Tuesday  in  June :  Provided,  however,  That  in  the  year 
nineteen  hundred  and  twelve  a  session  shall  be  also  held  at 
Portland  on  the  first  Tuesday  in  February." 

§  118.  Maryland. 

§  86,  Judicial  Code,9  36  Stat.  at  L.   1114,  Comp.  St. 

o  Re-enacting  §  531,  R.  S.  (see  Ref.  §  104,  supra)  Comp.  St.  1801,  p. 
310,  4  F.  S.  A.  16. 

P  Re-enacting  §  531,  R.  S.  (see  Ref.  §  104,  supra)  Comp.  St.  1901.  p. 
31G.  4  F.  S.  A.  10. 


54  MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §   120 

1911,  p.  168,  1912  Supp.  F.  8.  A.  v.  1,  p.  172.  'The  state 
of  Maryland  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Maryland.  Terms  of  the  district 
court  shall  be  held  at  Baltimore  on  the  first  Tuesdays  in 
March,  June,  September,  and  December;  and  at  Cumber- 
land on  the  second  Monday  in  May  and  the  last  Monday  in 
September.  The  clerk  of  the  court  shall  appoint  a  deputy 
who  shall  reside  and  maintain  an  office  at  Cumberland,  un- 
less the  clerk  shall  himself  reside  there ;  and  the  marshal  shall 
also  appoint  a  deputy  who  shall  reside  and  maintain  an  office 
at  Cumberland,  unless  he  shall  himself  reside  there." 

§  119.  Massachusetts. 

§  81,  Judicial  Code*  36  Stat.  at  L.  Ill 4,  Comp.  St. 
1911,  p.  168,  1912  Supp.  F.  S.  A.  v.  1,  p.  172.  "The  state 
of  Massachusetts  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Massachusetts.  Terms  of  the  dis- 
trict court  shall  be  held  at  Boston  on  the  third  Tuesday 
in  March,  the  fourth  Tuesday  in  June,  the  second  Tuesday 
in  September,  and  the  first  Tuesday  in  December;  and  at 
Spring-field,  on  the  second  Tuesdays  in  May  and  December: 
Provided,  That  suitable  rooms  and  accommodations  for  hold- 
ing court  at  Springfield  shall  be  furnished  free  of  expense  to 
the  government  until  such  time  as  a  Federal  building  shall 
be  erected  there  for  that  purpose.  The  marshal  and  the 
clerk  for  said  district  shall  each  appoint  at  least  one  deputy, 
to  reside  in  Springfield  and  to  maintain  an  office  at  that 
place." 

§  120.  Michigan. 

§  88,  Judicial  Code*  36  Stat.  at  L.  1114,  Comp.  St. 
1911,  p.  169,  1912  Supp.  F.  S.  A.  v.  1,  pp.  172,  173,  as 
amended  act  July  9,  1912,  ch.  222,  37  Stat.  at  L.  190.  "The 
state  of  Michigan  is  divided  into  two  judicial  districts,  to  be 
known  as  the  eastern  and  western  districts  of  Michigan.  The 
eastern  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Alcona,  Alpena,  Arenac,  Bay,  Cheboygan,  Clare,  Craw- 
ford, Genesee,  Gladwin,  Gratiot,  Huron,  losco,  Isabella, 

a  Re-enacting  §  531,  R.  S.  (see  Ref.  §  104,  supra)  Comp.  St.  1901,  p.  316, 
4  F.  S.  A.  16. 

r  Re-enacting  §  538,  R.  S.,  Foster's  Fed.  Prac.  (4th  ed.)  p.  245,  Comp. 
St.  1901,  p.  368,  4  F.  S.  A  34,  with  amendments  thereto,  20  Stat.  at  L.  175,  28 
Stat.  at  L.  67. 


§    120  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  55 

Midland,  Montmorency,  Ogemaw,  Oscoda,  Otsego,  Presque 
Isle,  Roscommon,  Saginaw,  Shiawassee,  and  Tuscola,  which 
shall  constitute  the  northern  division ;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Branch, 
Calhoun,  Clinton,  Hillsdale,  Ingham,  Jackson,  Lapeer,  Lena- 
wee,  Livingston,  Macomb,  Monroe,  Oakland,  St.  Clair, 
Sanilac,  Washtenaw,  and  Wayne,  which  shall  constitute  the 
southern  division  of  said  district.  Terms  of  the  district 
court  for  the  southern  division  shall  be  held  at  Detroit  on 
the  first  Tuesdays  in  March,  June,  and  November;  for 
the  northern  division,  at  Bay  City  on  the  first  Tuesdays  in 
May  and  October,  and  at  Port  Huron  in  the  discretion  of 
the  judge  of  said  court  and  at  such  times  as  he  shall  appoint 
therefor.  There  shall  also  be  held  a  special  or  adjourned 
term  of  the  district  court  at  Bay  City  for  the  hearing  of 
admiralty  causes,  beginning  in  the  month  of  February  in 
each  year.  The  western  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten, 
in  the  counties  of  Alger,  Baraga,  Chippewa,  Delta,  Dick- 
inson, Gogebic,  Houghton,  Iron,  Keweenaw,  Luce,  Mack- 
mac,  Marquette,  Menominee,  Ontonagon,  and  Schoolcraft, 
which  shall  constitute  the  northern  division ;  also  the  terri- 
tory embraced  on  the  said  date  last  mentioned  in  the  counties 
of  Allegan,  Antrim,  Barry,  Benzie,  Berrien,  Cass,  Charle- 
voix,  Eaton,  Emmet,  Grand  Traverse,  Ionia,  Kalamazoo, 
Kalkaska,  Kent,  Lake,  Leelanau,  Manistee,  Mason,  Mccosta, 
Missaukee,  Montcalm,  Muskegon,  Newaygo,  Oceana,  Osceola, 
Ottawa,  St.  Joseph,  Van  Buren,  and  Wexford,  which  shall 
constitute  the  southern  division  of  said  district.  Terms  of 
the  district  court  for  the  western  district  of  Michigan  for  the 
southern  division  shall  be  held  at  Grand  Rapids  commencing 
on  the  first  Tuesdays  in  March,  June,  October,  and  Decem- 
ber ;  and  for  the  northern  division  at  Marquette  commencing 
on  the  first  Tuesdays  in  April  and  September ;  and  at  Sault 
Sainte  Marie  commencing  on  the  second  Tuesdays  in  Janu- 
ary and  July.  All  issues  of  fact  shall  be  tried  at  the 
terms  in  the  division  where  such  suit  shall  be  com- 
.  menced.  Actions  in  rem  and  admiralty  may  be  brought 
in  whichever  division  of  the  eastern  district  service  can  be 
had  upon  the  res.  Nothing  herein  contained  shall  prevent 
the  district  court  of  the  western  division  from  regulating, 
by  general  rule,  the  venue  of  transitory  actions  either  at 
law  or  in  equity,  or  from  changing  the  same  for  cause.  The 
clerk  of  the  court  for  the  western  district  shall  reside  and 


56          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  121 

keep  his  office  at  Grand  Rapids,  and  shall  also  appoint  a 
deputy  clerk  for  Said  court  held  at  Marquette,  who  shall 
reside  and  keep  his  office  at  that  place.  The  marshal  for 
said  western  district  shall  keep  an  office  and  a  deputy  mar- 
shal at  Marquette.  The  clerk  of  the  court  for  the  eastern 
district  shall  keep  his  office  at  the  city  of  Detroit,  and  shall 
appoint  a  deputy  for  the  court  held  at  Bay  City,  who  shall 
reside  and  keep  his  office  at  that  place.  The  marshal  for 
said  district  shall  keep  an  office  and  a  deputy  marshal  at 
Bay  City,  and  mileage  on  service  of  process  in  said  north- 
ern division  shall  be  computed  from  Bay  City." 

§  121.  Minnesota. 

§  89 f  Judicial  Code*  36  Stat.  at  L.  1115,  Comp.  St, 
1911,  p.  110,  1912  Supp.  F.  8.  A.  v.  1,  p.  173.  "The  state 
of  Minnesota  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Minnesota.  It  is  divided  into  six 
divisions,  to  be  known  as  the  first,  second,  third,  fourth, 
fifth,  and  sixth  divisions.  TJie  first  .division  shall  include 
the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Winona,  Wabasha,  Olm- 
sted,  Dodge,  Steele,  Mower,  Fillmore,  and  Houston.  The 
second  division  shall  include  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Freeborn,  Faribault, 
Martin,  Jackson,  Cobles,  Rock,  Pipestone,  Murray,  Cotton- 
wood,  Watonwan,  Blue  Earth,  Waseca,  Lesueur,  ^icollet, 
Brown,  Redwood,  Lyon,  Lincoln,  Yellow  Medicine,  Sibley, 
and  Lac  qui  Parle.  The  third  division  shall  include  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Chisago,  Washington,  Ramsey,  Dakota,  Goodhue,  Rice, 
and  Scott.  The  fourth  division  shall  include  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Hen- 
nepin,  Wright,  Meeker,  Kandiyohl,  Swift,  Chippewa,  Ren- 
ville,  McLeod,  Carver,  Anoka,  Sherburne,  and  Isanti.  The 
fifth  division  shall  include  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Cook,  Lake,  Saint 
Louis,  Itasca,  Koochiching,  Cass,  Crow  Wing,  Aitkin,  Carl- 
ton,  Pine,  Kanabec,  Mille  Lacs,  Morrison,  and  Benton.  The 
sixth  division  shall  include  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Stearns,  Pope,  Ste- 

»  Re-enacting  §  531,  R.  S.,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  208,  246, 
Comp.  St.  1901,  p.  316,  4  F.  S.  A.  16,  with  amendments  thereto,  26  Stat.  at  L.' 
2-3. 


§    122  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  57 

vens,  Bigstone,  Traverse,  Grant,  Douglas,  Todd,  Ottertail, 
Roseau,  Wilkin,  Clay,  Becker,  Wadena,  Norman,  Polk,  Red 
Lake,  Marshall,  Kittson,  Beltrami,  Clearwater,  Mahnomen, 
and  Hubbard.  Terms  of  the  district  court  for  the  first  di- 
vision shall  be  held  at  Winona  on  the  third  Tuesdays  in 
May  and  November;  for  the  second  division,  at  Maiikato 
on  the  fourth  Tuesdays  in  April  and  October;  for  the  third 
division,  at  Saint  Paul  on  the  first  Tuesdays  in  June  and 
December;  for  the  fourth  division,  at  Minneapolis  on  the 
first  Tuesdays  in  April  and  October;  for  the  fifth  division, 
at  Duluth  on  the  second  Tuesdays  in  January  and  July ;  and 
for  the  sixth  division,  at  Fergus  Falls  on  the  first  Tuesday 
in  May  and  second  Tuesday  in  November.  The  clerk  of  the 
court  shall  appoint  a  deputy  clerk  at  each  place  where  the 
court  is  now  required  to  be  held  at  which  the  clerk  shall 
not  himself  reside,  who  shall  keep  his  office  and  reside  at  the 
place  appointed  for  the  holding  of  said  court." 

§  122.  Mississippi. 

§  90,  Judicial  Code?  36  Stat.  at  L.  1116,  Comp.  St. 
1911,  p.  170,  1912  Supp.  F.  8.  A.  v.  1,  p.  174,  as  amended 
act  May  27, 1912,  ch.  136,  37  Stat.  at  L.  118,  119.  "The  state 
of  Mississippi  is  divided  into  two  judicial  districts,  to  be 
known  as  the  northern  and  southern  districts  of  Mississippi. 
The  northern  district  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Alcorn,  Attala,  Chickasaw,  Choctaw,  Clay,  Ita- 
wamba,  Lee,  Lowndes,  Monroe,  Oktibbeha,  Pontotoe,  Pren- 
tiss,  Tishomingo,  and  Winston,  which  shall  constitute  the 
eastern  division  of  said  district;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Benton,  Coaho- 
ma,  Calhoun,  Carroll,  De  Soto,  Grenada,  Lafayette,  Mar- 
shall, Montgomery,  Panola,  Tate,  Tippah,  Tunica,  Union, 
Webster,  and  Yalobusha,  which  shall  constitute  the  western 
division  of  said  district.  Also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Bolivar,  Coahoma. 
Leflore,  Quitman,  Sunflower,  Tallahatchie,  and  Funica, 
which  shall  constitute  the  Delta  division  of  said  district.  The 
terms  of  the  district  court  for  the  eastern  division  shall  be 
held  at  Aberdeen  on  the  first  Mondays  in  April  and  October ; 
and  for  the  western  division,  at  Oxford  on  the  first  Mondays 

t  Re-enacting  act  of  June  15,  1882,  ch.  218,  22  Stat.  at  L.  101,  Comp.  St. 
1901,  p.  377,  4  F.  S.  A.  37,  with  amendments  thereto,  24  Stat.  at  L.  127, 
24  Stat.  at  L.  430,  24  Stat.  at  L.  84,  25  Stat.  at  L.  78,  28  Stat.  at  L.  114, 
30  Stat.  at  L.  995. 


58          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §   123 

in  June  and  December,  and  for  the  Delta  division  at  Glarks- 
dale  on  the  fourth  Mondays  in  January  and  July :  Provided, 
That  suitable  rooms  and  accommodations  for  holding  court 
at  Clarksdale  are  furnished  free  of  expense  to  the  United 
States.  The  southern  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Adams,  Amite,  Copiah,  Covington,  Franklin, 
Hinds,  Holmes,  Jefferson,  Jefferson  Davis,  Lawrence,  Liu- 
coin,  Madison,  Pike,  Rankin,  Simpson,  Smith,  Scott,  Wilk- 
inson, and  Yazoo,  which  shall  constitute  the  Jackson  divi- 
sion ;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Claiborne,  Issaquena,  Sharkey,  Warren, 
and  Washington,  which  shall  constitute  the  western  divi- 
sion ;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Clarke,  Jones,  Jasper,  Kemper,  Lauder- 
dale,  Leake,  Neshoba,  Newton,  Noxubee,  and  Wayne,  which 
shall  constitute  the  eastern  division ;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Forrest, 
Greene,  Hancock,  Harrison,  Jackson,  Lamar,  Marion,  Perry, 
and  Pearl  River,  which  shall  constitute  the  southern  division 
of  said  district.  Terms  of  the  district  court  for  the  Jackson 
division  shall  be  held  at  Jackson  on  the  first  Mondays  in 
May  and  Xovember;  for  the  western  division,  at  Vicksburg 
011  the  first-  Mondays  in  January  and  July ;  for  the  eastern 
division,  at  Meridian  on  the  second  Mondays  in  March  and 
September;  and  for  the  southern  division,  at  Biloxi  on  the 
third  Mondays  in  February  and  August.  The  clerk  of  the 
court  for  each  district  shall  maintain  an  office  in  charge  of 
himself  or  a  deputy  at  each  place  in  his  district  at  which 
court  is  now  required  to  be  held,  at  which  he  shall  not  him- 
self reside,  wrhich  shall  be  kept  open  at  all  times  for  the 
transaction  of  the  business  of  the  court.  The  marshal  for 
each  of  said  districts  shall  maintain  an  office  in  charge  of 
himself  or  a  deputy  at  each  place  of  holding  court  in  his 
district." 

§  123.  Missouri. 

§  91,  Judicial  Code™  36  Stat.  at  L.  1117,  Comp.  St. 
1911,  p.  Ill,  1912  Supp.  F.  8.  A.  v.  1,  p.  175,  as  amended 
act  Dec.  22,  1911,' ' ch.  8,  37  Stat.  at  L.  51,  52.  "The  state 
of  Missouri  is  divided  into  two  judicial  districts,  to  be  known 
as  the  eastern  and  western  districts  of  Missouri.  The  eastern 

u  Re-enacting  act  of  Feb.  28,  1887,  ch.  271,  24  Stat.  at  L.  424,  Comp.  St. 
1901,  p.  384,  and  amendments  thereto,  29  Stat.  at  L.  502,  Foster's  Fed.  Prac. 
(4th  ed.)  p.  244,  31  Stat.  at  L.  739. 


§    123  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  59 

district  shall  include  the  territory  embraced  on  the  first  day 
of  July,  nineteen  hundred  and  ten,  in  the  city  of  Saint 
Louis  and  the  counties  of  Audrain,  Crawford,  Dent,  Frank- 
lin, Gasconade,  Iron,  Jefferson,  Lincoln,  Maries,  Montgom- 
ery, Phelps,  Saint  Charles,  Saint  Francois,  Sainte  Gene- 
vieve,  Saint  Louis,  Warren,  and  Washington,  which  shall 
constitute  the  eastern  division  of  said  district ;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  counties  of 
Adair,  Chariton,  Clark,  Knox,  Lewis,  Linn,  Macon,  Marion, 
Monroe,  Pike,  Rails,  Randolph,  Schuyler,  Scotland,  and 
Shelby,  which  shall  constitute  the  northern  division  of  said 
district ;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Bellinger,  Butler,  Cape  Girardeau, 
Carter,  Dunklin,  Madison,  Mississippi,  Xew  Madrid,  Pemis- 
cot,  Perry,  Reynolds,  Ripley,  Scott,  Shannon,  Stoddard. 
and  Wayne,. which  shall  constitute  the  southeastern  division 
of  said  district.  Terms  of  the  district  court  for  the  eastern 
division  shall  be  held  at  Saint  Louis  on  the  third  Mondays  in 
March  and  September,  and  at  Rolla  on  the  second  Mondays  in 
January  and  June:  Provided,  That  suitable  rooms  and  ac- 
commodations for  holding  court  at  Rolla  are  furnished  free 
of  expense  to  the  United  States ;  for  the  northern  division, 
at  Hannibal  on  the  fourth  Monday  in  May  and  the  first 
Monday  in  December;  and  for  the  southeastern  division,  at 
Cape  Girardeau  on  the  second  Mondays  in  April  and  Octo- 
ber. The  western  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten, 
in  the  counties  of  Bates,  Caldwell,  Carroll,  Cass,  Clay, 
Grundy,  Henry,  Jackson,  Johnson,  Lafayette,  Livingston, 
Mercer,  Putnam,  Ray,  Saint  Clair,  Saline,  and  Sullivan, 
which  shall  constitute  the  western  division ;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  counties  of 
Barton,  Barry,  Jasper,  Lawrence,  McDonald,  Xewton,  Stone, 
and  Vernon,  which  shall  constitute  the  southwestern  division ; 
also  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  at  Andrew,  Atchison,  Buchanan,  Clinton, 
Daviess,  Dekalb,  Gentry,  Holt,  Harrison,  ^Todaway,  Platte, 
and  Worth,  which  shall  constitute  the  Saint  Joseph  division ; 
also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Benton,  Boone,  Callaway,  Cooper,  Camden,  Cole, 
Hickory,  Howard,  Miller,  Moniteau,  Morgan,  Osage,  and 
Pettis,  which  shall  constitute  the  central  division;  also  the 
territory  embraced  on  the  date. last  mentioned  in  the  counties 
of  Christian,  Cedar,  Dade,  Dallas,  Douglas,  Greene,  Howell, 
Laclede,  Oregon,  Ozark,  Polk,  Pulaski,  Taney,  Texas,  Web- 
ster, and  Wright,  which  shall  constitute  the  southern  division. 


60          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE       §  124 

Terms  of  the  district  court  for  the  western  division  shall  be 
held  at  Kansas  City  on  the  fourth  Monday  in  April  and  the 
first  Monday  in  November,  and  at  Chillicothe  on  the  fourth 
Monday  in  May  and  the  first  Monday  in  December :  Provided. 
That  suitable  rooms  and  accommodations  for  holding  court 
at  Chillicothe  are  furnished  free  of  expense  to  the  United 
States;  for  the  southwestern  division,  at  Joplin  on  the  second 
Mondays  in  June  and  January;  for  the  Saint  Joseph  divi- 
sion, at  Saint  Joseph  on  the  first  Monday  in  March  and  third 
Monday  in  September;  for  the  central  division,  at  Jefferson 
City  on  the  third  Mondays  in  March  and  October;  and  for 
the  southern  division,  at  Springfield  on  the  first  Mondays 
in  April  and  October.  The  clerk  of  the  court  at  Saint  Louis 
in  the  eastern  district  shall  maintain  an  office  in  charge  of 
himself  or  a  deputy  at  Saint  Louis  and  Hannibal,  and  at 
such  other  places  of  holding  court  in  said  district  as  may  be 
deemed  necessary  to  the  judge,  which  shall  be  kept  open  at 
all  times  for  the  transaction  of  the  business  of  the  court.  The 
clerk  of  the  court  for  the  western  district  shall  maintain  an 
office  in  charge  of  himself  or  a  deputy  at  Kansas  City,  at 
Jefferson  City,  at  Saint  Joseph,  at  Chillicothe,  at  Joplin, 
and  at  Springfield,  which  shall  be  kept  open  at  all  times  for 
the  transaction  of  the  business  of  the  court.  The  marshal 
for  each  district  shall  also  maintain  an  office  in  charge  of 
himself  or  a  deputy  at  each  place  at  which  court  is  now  held 
in  his  district." 

§  124.  Montana. 

§  92,  Judicial  Code?  36  Stat.  cut  L.  1118,  Comp.  St. 
1911,  p.  113,  1912  Supp.  F.  8.  A.  v.  1,  p.  176.  "The  state 
of  Montana  shall  constitute  one  judicial  district  to  be  known 
as  the  district  of  Montana.  Terms  of  the  district  court  shall 
be  held  at  Helena  on  the  first  Mondays  in  April  and  No- 
vember; at  Butte  on  the  first  Tuesdays  in  February  and 
September;  at  Great  Falls  on  the  first  Mondays  in  May  and 
October;  at  Missoula  on  the  first  Mondays  in  January  and 
June;  and  at  Billings  on  the  first  Mondays  in  March  and 
August.  Causes,  civil  and  criminal,  may  be  transferred  by 
the  court  or  judge  thereof  from  Helena  to  Butte  or  from 
Butte  to  Helena,  or  from  Helena  or  Butte  to  Great  Falls, 
or  from  Great  Falls  to  Helena  or  Butte,  in  said  district, 
when  the  convenience  of  the  parties  or  the  ends  of  justice 
would  be  promoted  by  the  transfer;  and  any  interlocutory 
order  may  be  made  by  the  court  or  judge  thereof  in  either 
place." 

v  Re-enacting  25  Stat.  at  L.  628,  4  F.  S.  A.  42. 


§    125          JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  61 

§  125.  Nebraska. 

§  93,  Judicial  Code™  36  Stat.  at  L.  1118,  Comp.  St. 
1911,  p.  113,  1912  Supp.  F.  8.  A.  v.  1,  pp.  116,  111.  "The 
state  of  Nebraska  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Nebraska.  Said  district  is  divided 
into  eight  divisions.  The  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Douglas,  Sarpy,  Washington,  Dodge,  Colfax,  Platte,  Nance, 
Boone,  Wheeler,  Burt,  Thurston,  Dakota,  Cuming,  Cedar,  and 
Dixon,  shall  constitute  the  Omaha  division ;  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Madison, 
Antelope,  Knox,  Pierce,  Stanton,  Wayne,  Holt,  Boyd,  Eock, 
Brown,  and  Keya  Paha,  shall  constitute  the  Norfolk  divi- 
sion ;  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Cherry,  Sheridan,  Dawes,  Box  Butte,  and 
Sioux,  shall  constitute  the  Chadron  division;  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Hall, 
Merrick,  Howard,  Greeley,  Garfield,  Valley,  Sherman,  Buf- 
falo, Custer,  Loup,  Elaine,  Thomas,  Hooker,  and  Grant, 
shall  constitute  the  Grand  Island  division;  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Lincoln, 
Dawson,  Logan,  McPherson,  Keith,  Deuel,  Garden,  Morrill, 
Cheyenne,  Kimball,  Banner,  and  Scott's  Bluff,  shall  consti- 
tute the  North  Platte  division ;  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Cass,  Otoe,  Johnson, 
Nemaha,  Pawnee,  Eichardson,  Gage,  Lancaster,  Saunders, 
Butler,  Seward,  Saline,  Jefferson,  Thayer,  Fillmore,  York, 
Polk,  and  Hamilton,  shall  constitute  the  Lincoln  division ; 
the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Clay,  Nuckolls,  Webster,  Adams,  Kearney, 
Franklin,  Harlan,  and  Phelps,  shall  constitute  the  Hastings 
division ;  and  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Gosper,  Furnas,  Eed  Willow,  Fron- 
tier, Hayes,  Hitchcock,  Dundy,  Chase,  and  Perkins,  shall 
constitute  the  McCook  division.  Terms  of  the  district  court 
for  the  Omaha  division  shall  be  held  at  Omaha  on  the  first 
Monday  in  April  and  the  fourth  Monday  in  September;  for 
the  Norfolk  division,  at  Norfolk  on  the  third  Monday  in 
September;  for  the  Chadron  division,  at  Chadron  on  the 
second  Monday  in  September ;  for  the  Grand  Island  division, 
at  Grand  Island  on  the  second  Monday  in  January;  for 
the  North  Platte  division,  at  North  Platte  on  the  second 

^Re-enacting    §    531,    R.    S.    (see    Ref.    §    104,    supra)     Comp.    St.    15)01, 
p.  316,  4  F.  S.  A.  16. 


62         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  128 

Monday  in  June;  for  the  Lincoln  division,  at  Lincoln  on 
the  second  Monday  in  May  and  the  first  Monday  in  October ; 
for  the  Hastings  division,  at  Hastings  on  the  second  Monday 
in  March ;  and  for  the  McCook  division,  at  McCook  on  the 
first  Monday  in  March:  Provided,  That  where  provision  is 
made  herein  for  holding  court  at  places  where  there  are  no 
Federal  buildings,  a  suitable  room  in  which  to  hold  court, 
together  with  light  and  heat,  shall  be  provided  by  the  city 
or  county  where  such  court  is  held,  without  any  expense  to 
the  United  States.  The  clerk  of  the  court  shall  appoint  a 
deputy  for  each  division  of  the  district  in  which  he  does  not 
himself  reside,  who  shall  keep  his  office  and  reside  at  the 
place  of  holding  court  in  the  division  for  which  he  is  ap- 
pointed." 

§  126.  Nevada. 

§  94,  Judicial  Code*  36  Stat.  at  L.  1118,  Comp.  St. 
1911,  p.  Ilk,  1912  Supp.  F.  8.  A.  v.  1,  p.  111.  "The  state 
of  Nevada  shall  constitute  one  judicial  district,  to  be  known 
as  the  district  of  Nevada.  Terms  of  the  district  court  shall 
be  held  at  Carson  City  on  the  first  Mondays  in  February, 
May,  and  October." 

§  127.  New  Hampshire. 

§  95,  Judicial  Code,7  36  Stat.  at  L.  1119,  Comp.  St.  1911, 
p.  174,  1912  Supp.  F.  8.  A.  v.  1,  p.  177,  as  amended  act 
August  23,  1912,  ch.  344,  37  Stat.  at  L.  357.  "The  state  of 
New  Hampshire  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  New  Hampshire.  Terms  of  the  dis- 
trict court  shall  be  held  at  Portsmouth  on  the  last  Tuesday  in 
October;  at  Concord  on  the  last  Tuesday  in  April  and  sec- 
ond Tuesday  in  December;  and  at  Littleton  on  the  third 
Tuesday  in  September." 

§  128.  New  Jersey. 

;  §  96,  Judicial  Code,'  36  Stat.  at  L.  1119,  Comp.  St.  1911, 
p.  174,  1912  Supp.  F.  8.  A.  v.  1,  p.  177,  as  am.end.ed  act 
Feb.  14,  1913,  ch.  53,  37  Stat.  at  L.  675.  The  state  of  New 

x  Re-enacting  §  531,  R.  S.  (see  Ref.  §  104,  supra)  Comp.  St.  1901,  p.  316, 
4  F.  S.  A.  16. 

y  Re-enacting  §  531,  R.  S.  (see  Ref.  §  104,  supra)  Comp.  St.  1901,  p.  316, 
1  F.  S.  A.  16. 

'Re-enacting  §  531,  R.  S.  (see  Ref.  §  104,  supra)  Comp.  St.  1901,  p.  316, 
4  F.  S.  A.  16. 


§129  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  63 

Jersey  shall  constitute  one  judicial  district,  to  be  known  as 
the  district  of  New  Jersey.  Terms  of  the  district  court 
shall  be  held  at  Newark  on  the  first  Tuesday  in  April  and 
the  first  Tuesday  in  November ;  and  at  Trenton  on  the  third 
Tuesday  in  January  and  the  second  Tuesday  in. September 
of  each  year.  The  clerk  of  the  court  for  the  district  of  New 
Jersey  shall  maintain  an  office,  in  charge  of  himself  or  a 
deputy,  at  Newark  and  at  Trenton,  each  of  which  offices 
shall  be  kept  open  at  all  times  for  the  transaction  of  the  busi- 
ness of  the  court ;  and  the  marshal  shall  also  maintain  an 
office,  in  charge  of  himself  or  a  deputy,  at  Newark  and  at 
Trenton,  each  of  which  offices  shall  be  kept  open  at  all  times 
for  the  transaction  of  the  business  of  the  court." 

§  129.  New  Mexico. 

§  13,  Ad  June  20,  1910,  ch.  310,  Comp.  St.  1911,  p. 
174,  1912  Supp.  F.  8.  A.  p.  364.  "That  the  state,  when  ad- 
mitted as  aforesaid,  shall  constitute  one  judicial  district, 
and  the  circuit  and  district  courts  of  said  district  shall  be 
held  at  the  capital  of  said  state,  and  the  said  district  shall, 
for  judicial  purposes,  be  attached  to  the  eighth  judicial  cir- 
cuit. There  shall  be  appointed  for  said  district  one  district 
judge,  one  United  States  attorney,  and  one  United  States 
marshal.  The  judge  of  said  district  shall  receive  a  yearly 
salary  the  same  as  other  similar  judges  of  the  United  States, 
payable  as  provided  for  by  law,  and  shall  reside  in  the  dis- 
trict to  which  he  is  appointed.  There  shall  be  appointed 
clerks  of  said  courts,  who  shall  keep  their  offices  at  the 
capital  of  said  state.  The  regular  terms  of  said  courts  shall 
be  held  on  the  first  Monday  in  April  and  the  first  Monday  in 
October  of  each  year.  The  circuit  and  district  courts  for 
said  district,  and  the  judges  thereof,  respectively,  shall  pos- 
sess the  same  powers  and  jurisdiction  and  perform  the  same 
duties  required  to  be  performed  by  the  other  circuit  and  dis- 
trict courts  and  judges  of  the  United  States,  and  shall  be 
governed  by  the  same  laws  and  regulations.  The  marshal, 
district  attorney,  and  the  clerks  of  the  circuit  and  district 
courts  of  said  district,  and  all  other  officers  and  persons  per- 
forming duties  in  the  administration  of  justice  therein,  shall 
severally  possess  the  powers  and  perform  the  duties  lawfully 
possessed  and  required  to  be  performed  by  similar  officers  in 
other  districts  of  the  United  States,  and  shall,  for  the  services 
they  may  perform,  receive  the  fees  and  compensation  now 
allowed  by  law  to  officers  performing  similar  services  for  the 


64         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  130 

United  States  in  the  Territory  of  New  Mexico."     (36  Stat. 
at  L.  565.) 

§  130.  New  York. 

§  '91,  Judicial  Code,*  36  Stat.  at  L.  1119,  Comp.  St. 
1911,  p.  175,  1912  Supp.  F.  S.  A.  v.  1,  p.  177.  "The  state 
of  New  York  is  divided  into  four  judicial  districts,  to  be 
known  as  the  northern,  eastern,  southern,  and  western  dis- 
tricts of  New  York.  The  northern  district  shall  include  the 
territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Albany,  Broome,  Cayuga,  Chen- 
ango,  Clinton,  Cortland,  Delaware,  Essex,  Franklin,  Fulton, 
Hamilton,  Herkimer,  Jefferson,  Lewis,  Madison,  Montgom- 
ery, Oneida,  Onondaga,  Oswego,  Otsego,  Rensselaer,  Saint 
Lawrence,  Saratoga,  Schenectady,  Schoharie,  Tioga,  Tomp- 
kins,  Warren,  and  Washington,  with  the  waters  thereof. 
Terms  of  the  district  court  for  said  district  shall  be  held  at 
Albany  on  the  second  Tuesday  in  February ;  at  Utica  on  the 
first  Tuesday  in  December;  at  Binghamton  on  the  second 
Tuesday  in  June;  at  Auburn  on  the  first  Tuesday  in  Octo- 
ber; at  Syracuse  on  the  first  Tuesday  in  April;  and,  in  the 
discretion  of  the  judge  of  the  court,  one  term  annually  at 
sach  time  and  place  within  the  counties  of  Saratoga,  Onon- 
daga, Saint  Lawrence,  Clinton,  Jefferson,  Oswego,  and 
Franklin,  as  he  may  from  time  to  time  appoint.  Such  ap- 
pointment shall  be  made  by  notice  of  at  least  twenty  days 
published  in  a  newspaper  published  at  the  place  where  said 
court  is  to  be  held.  The  eastern  district  shall  include  the 
territory  embraced  on  the  first  day  of  July,  nineteen  hun- 
dred and  ten,  in  the  counties  of  Richmond,  Kings,  Queens, 
Nassau,  and  Suffolk,  with  the  waters  thereof.  Terms  of 
the  district  court  for  said  district  shall  be  held  at  Brooklyn 
on  the  first  Wednesday  in  every  month.  The  southern  dis- 
trict shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Columbia, 
Dutchess,  Greene,  New  York,  Orange,  Putnam,  Eockland, 
Sullivan,  Ulster,  and  Westchester,  with  the  waters  thereof. 
Terms  of  the  district  court  for  said  district  shall  be  held  at 
New  York  city  on  the  first  Tuesday  in  each  month.  The  dis- 
trict courts  of  the  southern  and  eastern  districts  shall  have 

a  Drawn  from  §  597,  R.  S.,  Rose's  Code,  §  473,  Foster's  Fed.  Prac.  (4th 
ed.)  p.  682,  Comp.  St.  1901,  pp.  394,  397,  4  F.  S.  A.  678,  and  §  599,  R.  S. 
Comp.  St.  1901,  p.  395,  4  F.  S.  A.  716. 


131  JUDICIAL    DISTRICTS TEKMS    AND    LOCALITIES  65 

concurrent  jurisdiction  over  the  waters  within  the  counties 
of  New  York,  Kings,  Queens,  Nassau,  Richmond,  and  Suf- 
folk, and  over  all  seizures  made  and  all  matters  done  in  such 
waters;  all  processes  or  orders  issued  within  either  of  said 
courts  or  by  any  judge  thereof  shall  run  and  be  executed  in 
any  part  of  said  waters.  The  western  district  shall  include 
the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Allegany,  Cattaraugus, 
Chautauqua,  Chemung,  Erie,  Genesee,  Livingston,  Monroe, 
Niagara,  Ontario,  Orleans,  Schuyler,  Seneca,  Steubeh, 
Wayne,  Wyoming,  and  Yates,  with  the  waters  thereof. 
Terms  of  the  district  court  for  said  district  shall  be  held  at 
Elmira  on  the  second  Tuesday  in  January;  at  Buffalo  on 
the  second  Tuesdays  in  March  and  November;  at  Rochester 
on  the  second  Tuesday  in  May ;  at  Jamestown  on  the  second 
Tuesday  in  July;  at  Lockport  on  the  second  Tuesday  in 
October ;  and  at  Canandaigua  on  the  second  Tuesday  in  Sep- 
tember. The  regular  sessions  of  the  district  court  for  the 
western  district  for  the  hearing  of  motions  and  for  proceed- 
ings in  bankruptcy  and  the  trial  of  causes  in  admiralty, 
shall  be  held  at  Buffalo  at  least  two  weeks  in  each  month  of 
the  year,  except  August,  unless  the  business  is  sooner  dis- 
posed of.  The  times  for  holding  the  same  and  such  other 
special  sessions  as  the  court  shall  deem  necessary  shall  be 
fixed  by  the  rules  of  the  court.  All  process  in  admiralty 
causes  and  proceedings  shall  be  made  returnable  at  Buffalo. 
The  judge  of  any  district  in  the  state  of  New  York  may  per- 
form the  duties  of  the  judge  of  any  other  district  in  such 
state  upon  the  request  of  any  resident  judge  entered  in  the 
minutes  of  his  court;  and  in  such  cases  such  judge  shall  have 
the  same  powers  as  are  vested  in  the  resident  judge." 


§  131.  North  Carolina. 

§  98,  Judicial  Code*  36  Stat.  at  L.  1120,  Comp.  St.  1911, 
p.  116, 1912  Supp.  F.  8.  A.  v.  1,  p.  118.  "The  state  of  North 
Carolina  is  divided  into  two  districts,  to  be  known  as  the 
eastern  and  wrestern  districts  of  North  Carolina.  The  east- 
ern district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 

b  Re-enacting   §   543,   R.   S.,   Foster's   Fed.   Prac.    (4th   ed.)    p.  252,   Comp. 
St.  1901.  p.  397,  4  F.  S.  A.  44,  and  amendment  thereto,  28  Stat.  at  L.  274-5. 
Montg. — 5. 


66          MONTGOMERY'S  MANUAL  OF  FEDERAL,  PROCEDURE      §  131 

Beaufort,  Bertie,  Bladen,  Brunswick,  Camden,  Chatham, 
Cumberland,  Currituck,  Craven,  Columbus,  Chowan,  Carter- 
et,  Dare,  Duplin,  Durham,  Edgecomb,  Franklin,  Gates, 
Granville,  Greene,  Halifax,  Harnett,  Hertford,  Hyde,  Johns- 
ton, Jones,  Lenoir,  Lee,  Martin,  Moore,  Nash,  New  Han- 
over, Northampton,  Onslow,  Pamlico,  Pasquotank,  Fender, 
Perquimans,  Person,  Pitt,  Robeson,  Richmond,  Sampson, 
Scotland,  Tyrrell,  Vance,  Wake,  Warren,  Washington, 
Wayne,  and  Wilson.  Terms  of  the  district  court  for  the 
eastern  district  shall  be  held  at  Elizabeth  City  on  the  second 
Mondays  in  April  and  October;  at  Washington  on  the  third 
Mondays  in  April  and  October;  at  Newbern  on  the  fourth 
Mondays  in  April  and  October ;  at  Wilmington  on  the  second 
Monday  after  the  fourth  Mondays  in  April  and  October; 
and  at  Raleigh  on  the  fourth  Monday  after  the  fourth  Mon- 
days in  April  and  October:  Provided,  That  the  city  of 
Washington  shall  provide  and  furnish  at  its  own  expense  a 
suitable  and  convenient  place  for  holding  the  district  court 
at  Washington  until  a  courthouse  shall  be  constructed  by 
the  United  States.  The  clerk  of  the  court  for  the  eastern 
district  shall  maintain  an  office  in  charge  of  himself  or  a 
deputy  at  Raleigh,  at  Wilmington,  at  Newbern,  at  Elizabeth 
City,  and  at  Washington,  which  shall  be  kept  open  at  all 
times  for  the  transaction  of  the  business  of  the  court.  The 
western  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Alamance,  Alexander,  Ashe,  Alleghany,  Anson,  Bun- 
combe, Burke,  Caswell,  Cabarrus,  Catawba,  Cleveland,  Cald- 
well,  Clay,  Cherokee,  Davidson,  Davie,  Forsyth,  Guilford, 
Gaston,  Graham,  Henderson,  Haywood,  Iredell,  Jackson, 
Lincoln,  Montgomery,  Mecklenburg,  Mitchell,  McDowell, 
Madison,  Macon,  Orange,  Polk,  Randolph,  Rockingham, 
Rowan,  Rutherford,  Stanley,  Stokes,  Surry,  Swain,  Tran- 
sylvania, Union,  Wilkes,  Watauga,  Yadkin,  and  Yancey. 
Terms  of  the  district  court  for  the  western  district  shall  be 
held  at  Greensboro  on  the  first  Mondays  in  June  and  De- 
cember; at  Statesville  on  the  third  Mondays  in  April  and 
October ;  at  Salisbury  on  the  fourth  Mondays  in  April  and 
October ;  at  Asheville  on  the  first  Mondays  in  May  and  No- 
vember ;  at  Charlotte  on  the  first  Mondays  in  April  and  Octo- 
ber; and  at  Wilkesboro  on  the 'fourth  Mondays  in  May  and 
November.  The  clerk  of  the  court  for  the  western  district 
shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at 


§132  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  G7 

Greensboro,  at  Asheville,  at  Statesville,  and  at  Wilkesboro, 
which  shall  be  kept  open  at  all  times  for  the  transaction  of 
the  business  of  the  court." 


§  132.  North  Dakota. 

§  99,  Judicial  Code*  36  8  tat.  at  L.  1121,  Comp.  St.  1911, 
p.  Ill,  1912  Supp.  F.  8.  A.  v.  1,  p.  179,  as  amended  Feb. 
5,  1912,  ch.  28,  37  Stat.  at  L.  59.  "The  state  of  North  Da- 
kota shall  constitute  one  judicial  district,  to  be  known  as  the 
district  of  North  Dakota.  The  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Burleigh,  Stutsman,  Logan,  Mclntosh,  Emmons,  Kidder, 
Foster,  Wells,  McLean,  Sheridan,  Adams,  Bowman,  Dunn, 
Hettinger,  Morton,  Stark,  and  McKenzie,  shall  consti- 
tute the  southwestern  division  of  said  district;  and  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties  of 
Cass,  Richland,  Barnes,  Dickey,  Sargent,  Lamoure,  Ransom, 
Griggs,  and  Steele,  shall  constitute  the  southeastern  division ; 
and  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Grand  Forks,  Traill,  Walsh,  Pembina,  Cavalier, 
and  Nelson,  shall  constitute  the  northeastern  division ;  and 
the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Ramsey,  Eddy,  Benson,  Towner,  Rolette,  Bot- 
tineau,  Pierce,  and  McHenry,  shall  constitute  the  northwest- 
ern division ;  and  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Ward,  Williams,  Montraille, 
Burk,  and  Renville,  shall  constitute  the  western  division. 
The  several  Indian  reservations  and  parts  thereof  within  said 
state  shall  constitute  a  part  of  the  several  divisions  within 
which  they  are  respectively  situated.  Terms  of  the  district 
court  for  the  southwestern  division  shall  be  held  at  Bismarck 
on  the  first  Tuesday  in  March ;  for  the  southeastern  division, 
at  Fargo  on  the  third  Tuesday  in  May ;  for  the  northeastern 
division,  at  Grand  Forks  on  the  second  Tuesday  in  November ; 
for  the  northwestern  division,  at  Devils  Lake  on  the  first 
Tuesday  in  July ;  and  for  the  western  division,  at  Minot  on 
the  second  Tuesday  in  October.  The  clerk  of  the  court  shall 
maintain  an  office  in  charge  of  himself  or  a-  deputy  at  each 
place  at  which  court  is  now  held  in  his  district." 

c  Ee-enacting  act  of  April  26,  1890,  ch.  161,  26  Stat.  at  L.  67,  Foster's  Fed. 
Prac.   (4th  ed.)   pp.  208,  252,  Comp.  St.  1901,  p.  399,  4  F.  S.  A.  45. 


08      .Mo.NTiii.MKRY's  MANUAL  OF  FEDERAL  PROCEDURE    §  133 

§  133.  Ohio. 

§  100,  Judicial  Code?  36  Stat.  at  L.  1121,  Comp.  St. 
1911,  p.  178,  1912  Supp.  F.  8.  A.  v.  1,  p.  180.  "The  state 
of  Ohio  is  divided  into  two  judicial  districts,  to  be  known 
as  the  northern  and  southern  districts  of  Ohio.  The  north- 
ern district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Ashland,  Ashtabula,  Cuyahoga,  Carroll,  Columbiana,  Craw- 
ford, Geauga,  Holmes,  Lake,  Lorain,  Medina,  Mahoning, 
Portage,  Richland,  Summit,  Stark,  Tuscarawas,  Truinbull, 
and  Wayne,  which  shall  constitute  the  eastern  division ;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the  coun- 
ties of  Auglaize,  Allen,  Defiance,  Erie,  Fulton,  Henry,  Han- 
cock, Hardin,  Huron,  Lucas,  Mercer,  Marion,  Ottawa,  Pauld- 
ing,  Putnam,  Seneca,  Sandusky,  Van  Wert,  Williams,  Wood, 
and  Wyandotte,  which  -shall  constitute  the  western  division 
of  said  district.  Terms  of  the  district  court  for  the  eastern 
division  shall  be  held  at  Cleveland  on  the  first  Tuesdays  in 
February,  April,  and  October,  and  at  Youngstown  on  the 
first  Tuesday  after  the  first  Monday  in  March ;  and  for  the 
western  division,  at  Toledo  on  the  last  Tuesdays  in  April 
and  October.  Grand  and  petit  jurors  summoned  for  service 
at  a  term  of  court  to  be  held  at  Cleveland  may,  if  in  the 
opinion  of  the  court  the  public  convenience  so  requires,  be 
directed  to  serve  also  at  the  term  then  being  held  or  author- 
ized to  be  held  at  Youngstown.  Crimes  and  offenses  com- 
mitted in  the  eastern  division  shall  be  cognizable  at  the  terms 
held  at  Cleveland,  or  at  Youngstown,  as  the  court  may  direct. 
Any  suit  brought  in  the  eastern  division  may,  in  the  dis- 
cretion of  the  court,  be  tried  at  the  term  held  at  Youngs- 
town. The  southern  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten, 
in  the  counties  of  Adams,  Brown,  Butler,  Champaign,  Clark, 
Clermont,  Clinton,  Darke,  Greene,  Hamilton,  Highland, 
Lawrence,  Miami,  Montgomery,  Preble,  Scioto,  Shelby,  and 
Warren,  which  shall  constitute  the  western  division ;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Athens,  Belmont,  Coshocton,  Delaware,  Fairfield,  Fayette, 
Franklin,  Gallia,  Guernsey,  Harrison,  Hocking,  Jackson, 
Jefferson,  Knox,  Licking,  Logan,  Madison,  Meigs,  Monroe, 
Morgan,  Morrow,  Muskingum,  Noble,  Perry,  Pickaway, 

«l  Re-enacting  §   544.  R.  S.,  Comp.   St.   1901,   p.   401,   4   F.   S.   A.  46,   with 
amendments  thereto,  20  Stat.  at  L.  101,  21  Stat.  at  L.  63,  26  Stat.  at  L.  799. 


§     13-i  JUDICIAL    DISTRICTS TERMS    AXD    LOCALITIES  "69 

Pike,  Ross,  Union,  Vinton,  and  Washington,  which  shall 
constitute  the  eastern  division  of  said  district.  Terms  of  the 
district  court  for  the  western  division  shall  be  held  at  Cin- 
cinnati on  the  first  Tuesdays  in  February,  April,  and  Octo- 
ber; and  for  the  eastern  division,  at  Columbus  on  the  first 
Tuesdays  in  June  and  December:  Provided,  That  terms  of 
the  district  court  for  the  southern  district  shall  be  held  at 
Dayton  on  the  first  Mondays  in  May  and  November.  Pros4- 
ecutions  for  crimes  and  offenses  committed  in  any  part  of 
said  district  shall  also  be  cognizable  at  the  terms  held  at 
Dayton.  All  suits  which  may  be  brought  within  the  south- 
ern district,  or  either  division  thereof,  may  be  instituted, 
tried,  and  determined  at  the  terms  held  at  Dayton." 

§  134.  Oklahoma. 

§  101,  Judicial  Code*  36  Stat.  at  L.  1122,  Comp.  St. 
1911,  p.  179,  1912  Supp.  F.  8.  A.  v.  1,  p.  181.  "The  state 
of  Oklahoma  is  divided  into  two  judicial  districts,  to  be 
known  as  the  eastern  and  the  western  districts  of  Oklahoma. 
The  eastern  district  shall  include  the  territory  embraced  on 
the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Adair,  Atoka,  Bryan,  Craig,  Cherokee,  Creek, 
Choctaw,  Coal,  Carter,  Delaware,  Garvin,  Grady,  Haskell, 
Hughes,  Johnson,  Jefferson,  Latimer,  Le  Flore,  Love,  Mc- 
Clain,  Mayes,  Muskogee,  Mclntosh,  McCurtain,  Murray, 
Marshall,  Nowata,  Ottawa,  Okmulgee,  Ofuskee,  Pittsburg, 
Pushmataha,  Pontotoc,  Rogers,  Stephens,  Sequoyah,  Sem- 
inole,  Tulsa,  Washington,  and  Wagoner.  Terms  of  the  dis- 
trict court  for  the  eastern  district  shall  be  held  at  Muskogee 
on  the  first  Monday  in  January ;  at  Vinita  on  the  first  Mon- 
day in  March ;  at  Tulsa  on  the  first  Monday  in  April ;  at 
South  McAlester  on  the  first  Monday  in  June;  at  Ardmore 
on  the  first  Monday  in  October;  and  at  Chickasha  on  the 
first  Monday  in  November  in  each  year.  The  western  dis- 
trict shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Alfalfa, 
Beaver,  Beckham,  Blaine,  Caddo,  Canadian,  Cimarron, 
Cleveland,  Comanche,  Custer,  Dewey,  Ellis,  Garfield,  Grant, 
Greer,  Harmon,  Harper,  Jackson,  Kay,  Kingfisher,  Kiowa, 
Lincoln,  Logan,  Majors,  Noble,  Oklahoma,  Osage,  Pawnee, 
Payne,  Pottawatomie,  Roger  Mills,  Texas,  Tillman,  Washita, 
Woods,  and  Woodward.  Terms  of  the  district  court  for  the 

«  New  legislation,  Oklahoma  being  new  state. 


70         MONTGOMEKY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  130 

district  shall  be  held  at  Guthrie  on  the  first  Monday  in  Janu- 
ary; at  Oklahoma  City  on  the  first  Monday  in  March;  at 
Enid  on  the  first  Monday  in  June;  at  Lawton  on  the  first 
Monday  in  September;  and  at  Woodward  on  the  first  Mon- 
day in  November:  Provided,  That  suitable  rooms  and  ac- 
commodations for  holding  court  at  Woodward  are  furnished 
free  of  expense  to  the  United  States.  The  clerk  of  the  dis- 
trict court  for  the  eastern  district  shall  keep  his  office  at  Mus- 
kogee,  and  the  clerk  for  the  western  district  at  Guthrie,  and 
shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at 
Oklahoma  City. 

§  135.  Oregon. 

§  102,  Judicial  Code?  36  Stat.  at  L.  1122,  Comp.  St. 
1911,  p.  179,  1912  Supp.  F.  8.  A.  v.  1,  p.  181.  "The  state 
of  Oregon  shall  constitute  one  judicial  district,  to  be  known 
as  the  district  of  Oregon.  Terms  of  the  district  court  shall 
be  held  at  Portland  on  the  first  Mondays  in  March,  July, 
and  November ;  at  Pendleton  on  the  first  Tuesday  in  April ; 
and  at  Medford  on  the  first  Tuesday  in  October.  The  mar- 
shal and  the  clerk  for  said  district  shall  each  appoint,  in  the 
manner  provided  by  law,  at  least  one  deputy  at  Pendleton 
and  one  at  Medford,  who  shall  reside  and  maintain  an  office 
at  each  of  said  places." 

§  136.  Pennsylvania. 

§  103,  Judicial  Code*  36  Stat.  at  L.  1123,  Comp.  St. 
1911,  p.  180,  1912  Supp.  F.  S.  A.  v.  1,  p.  182,  as  amended 
mi  March  3,  1913,  ch.  113,  37  Stat.  at  L.  730,  731.  "The 
state  of  Pennsylvania  is  divided  into  three  judicial  districts, 
to  be  known  as  the  eastern,  middle,  and  western  districts  of 
Pennsylvania.  The  eastern  district  shall  include  the  terri- 
tory embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Berks,  Bucks,  Chester,  Delaware, 
Lancaster,  Lehigh,  Montgomery,  Northampton,  Philadel- 
phia, and  Schuylkill.  Terms  of  the  district  court  shall  be 
held  at  Philadelphia  on  the  second  Mondays  in  March  and 
June,  the  third  Monday  in  September,  and  the  second  Mon- 
day in  December,  each  term  to  continue  until  the  succeeding 

* Re-enacting  §  531,  R.  S.  (see  Ref.  §  104,  supra)  Comp.  St.  1901,  p.  316, 
4  F.  S.  A.  16. 

K  Re-enacting  §  545,  R.  S.,  Foster's  Fed.  Prac.  (4th  ed.)  p.  255,  Comp. 
St.  1901,  p.  405,  4  F.  S.  A.  47,  with  amendments  thereto,  31  Stat.  at  L.  880. 


§    138  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  71 

term  begins.  The  middle  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten, 
in  the  counties  of  Adams,  Bradford,  Cameron,  Carbon,  Cen- 
ter, Clinton,  Columbia,  Cumberland,  Dauphin,  Franklin,  Ful- 
ton, Huntingdon,  Juniata,  Lackawanna,  Lebanon,  Luzerne, 
Lycoming,  Mifflin,  Monroe,  Montour,  Northumberland, 
Perry,  Pike,  Potter,  Snyder,  Sullivan,  Susquehanna,  Tioga, 
Union,  Wayne,  Wyoming,  and  York.  Terms  of  the  district 
court  shall  be  held  at  Scranton  on  the  second  Monday  in 
March  and  the  third  Monday  in  October ;  at  Harrisburg  on 
the  first  Mondays  in  May  and  December ;  at  Sanbury  on  the 
second  Monday  in  January ;  and  at  Williamsport  on  the  first 
Monday  in  June.  The  clerk  of  the  court  for  the  middle  dis- 
trict shall  maintain  an  office  in  charge  of  himself  or  a  deputy 
at  Harrisburg;  and  civil  suits  instituted  at  that  place  shall 
be  tried  there,  if  either  party  resides  nearest  that  place  of 
holding  court,  unless  by  consent  of  parties  they  are  removed 
to  another  place  for  trial.  The  western  district  shall  include 
the  territory  embraced  on  the  first  day  of  July,  nineteen  hun- 
dred and  ten,  in  the  counties  of  Allegheny,  Armstrong, 
Beaver,  Bedford,  Blair,  Butler,  Cambria,  Clarion,  Clearfield, 
Crawford,  Elk,  Erie,  Fayette,  Forest,  Greene,  Indiana,  Jef- 
ferson, Lawrence,  McKean,  Mercer,  Somerset,  Venango, 
Warren,  Washington,  and  Westmoreland.  Terms  of  the  dis- 
trict court  shall  be  held  at  Pittsburg  on  the  first  Monday  in 
May  and  the  third  Monday  in  October;  and  at  Erie  on  the 
third  Monday  in  July  and  the  second  Monday  in  January." 

§  137.  Rhode  Island. 

§  10k,  Judicial  Code*  36  Stat.  at  L.  1123,  Comp.  St. 
1911,  p.  180,  1912  Supp.  F.  S.  A.  v.  1,  p.  182,  as  amended 
Feb.  1,  1912,  ch.  21,  37  Stat.  at  L.  59.  "The  state  of  Khode 
Island  shall  constitute  one  judicial  district,  to  be  known  as 
the  district  of  Rhode  Island ;  terms  of  the  district  court  shall 
be  held  at  Providence  on  the  fourth  Tuesday  in  May  and  the 
third  Tuesday  in  November." 

§  138.  South  Carolina. 

§  105,  Judicial  Code,1  36  Stat.  at  L.  1128,  Comp.  St. 
1911,  p.  180,  1912  Supp.  F.  S.  A.  v.  1,  p.  182,  as  amended 

h  Re-enacting  §  531,  R.  S.   (see  Ref.  §  104,  supra)   Comp.  St.  1901,  p.  316, 
4  F.  S.  A.  16,  amended  Feb.  1,  1912,  ch.  27,  37  Stat.  at  L.  59. 

*  Re-enacting  §   546,   R.   S.,   Rose's   Code,   §   285,   Foster's   Fed.   Prac.    (4th 


72         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE       §  139 

February  5,  1912,  ch.  28,  37  Stat.  at  L.  59,  60.  "The  state 
of  South  Carolina  is  divided  into  two  districts,  to  be  known 
as  the  eastern  and  western  districts  of  South  Carolina.  The 
western  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Abbeville,  Anderson,  Cherokee,  Chester,  Edgefield,  Fair- 
field,  Greenville,  Greenwood,  Lancaster,  Laurens,  Newberry, 
Oconee,  Pickens,  Saluda,  Spartanburg,  Union,  and  York. 
Terms  of  the  district  court  for  the  western  district  shall  be 
held  at  Greenville  on  the  third  Tuesdays  in  April  and  Oc- 
tober. The  eastern  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten, 
in  the  counties  of  Aiken,  Bamberg,  Barnwell,  Beaufort, 
Berkeley,  Calhoun,  Charleston,  Chesterfield,  Clarendon,  Col- 
leton,  Darlington,  Dillon,  Dorchester,  Florence,  Georgetown, 
Hampton,  Horry,  Kershaw,  Lee,  Lexington,  Marion,  Marl- 
boro, Orangeburg,  Richland,  Sumter,  and  Williamsburg. 
Terms  of  the  district  court  for  the  eastern  district  shall  be  held 
at  Charleston  on  the  first  Tuesdays  in  June  and  December; 
at  Columbia  on  the  third  Tuesday  in  January  and  the 
first  Tuesday  in  November,  the  latter  term  to  be  solely  for 
the  trial  of  civil  cases ;  and  at  Florence  on  the  first  Tuesday 
in  March.  The  offices  of  the  clerk  of  the  district  court  shall 
be  at  Greenville,  and  at  Charleston ;  and  the  clerk  shall  re- 
side in  one  of  said  cities  and  have  a  deputy  in  the  other." 

/ 
§  139.  South  Dakota. 

§  106,  Judicial  Code*  36  Stat.  at  L.  1123,  Comp.  St. 
1911,  p.  181,  1912  Supp.  F.  S.  A.  v.  1,  p.  183.  "The  state 
of  South  Dakota  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  South  Dakota.  The  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten, 
in  the  counties  of  Aurora,  Beadle,  Bon  Homme.  Brookings, 
Brule,  Charles  Mix,  Clay,  Davison,  Douglas,  Gregory,  Han- 
son, Hutchinson,  Kingsbury,  Lake,  Lincoln,  McCook,  Min- 
er, Minnehaha,  Moody,  Sanborn,  Turner,  Union,  and  Yank- 
ton,  and  in  the  Yankton  Indian  reservation,  shall  constitute 
the  southern  division  of  said  district ;  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Brown.  Camp- 
bell, Clark,  Codington,  Corson,  Day,  Deuel,  Edmunds, 

ed.)  p.  256,  Comp.  St.  1901,  p.  407,  4  F.  S.  A.  48,  which  section  is  expressly  re- 
pealed by  §  297,  Judicial  Code. 

J  Re-enacting  act  of  November  3,  1893,  ch.   10,  28  Stat.  at  L.  5,  Foster's 
Fed.  Prac.   (4th  ed.)   pp.  237,  2.57,  Comp.  St.  1901,  p.  410,  4  F.  S.  A.  49. 


JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  73 


Grant,  Ilamlin,  McPherson,  Marshall,  Roberts,  Schnasse, 
Spink,  and  Walworth,  and  in  the  Sisseton  and  Wahpeton 
Indian  reservation,  and  in  that  portion  of  the  Standing 
Rock  Indian  reservation  lying  in  South  Dakota,  shall  con- 
stitute the  northern  division ;  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Armstrong,  Buffalo, 
Dewey,  Faulk,  Hand,  Hughes,  Hyde,  Jerauld,  Lyman,  Pot- 
ter, Stanley,  and  Sully,  and  in  the  Cheyenne  River,  Lower 
Brule,  and  Crow  Creek  Indian  reservations,  shall  constitute 
the  central  division ;  and  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Bennett,  Butte,  Custer, 
Fall  River,  Harding,  Lawrence,  Meade,  Mellette,  Penning- 
ton,  Perkins,  Shannon,  Todd,  Tripp,  Washabaugh,  and 
Washington,  and  in  the  Rosebud  and  Pine  Ridge  Indian 
reservations,  shall  constitute  the  western  division.  Terms 
of  the  district  court  for  the  southern  division  shall  be  held 
at  Sioux  Falls  on  the  first  Tuesday  in  April  and  the  third 
Tuesday  in  October;  for  the  northern  division,  at  Aberdeen 
on  the  first  Tuesday  in  May  and  the  second  Tuesday  in 
November;  for  the  central  division,  at  Pierre  on  the  second 
Tuesday  in  June  and  the  first  Tuesday  in  October;  and  for 
the  western  division,  at  Deadwood  on  the  third  Tuesday  in 
May  and  the  first  Tuesday  in  September.  The  clerk  of 
the  district  court  shall  maintain  an  office  in  charge  of  himself 
or  a  deputy  at  Sioux  Falls,  at  Pierre,  at  Aberdeen,  and  at 
Deadwood,  which  shall  be  kept  open  for  the  transaction  of 
the  business  of  the  court." 

§  140.  Tennessee. 

§  101,  Judicial  Code*  36  Stat.  at  L.  1124,  Comp.  St. 
1911,  p.  182,  1912  Supp.  F.  8.  A.  v.  1,  p.  183,  as  amended 
ad  August  20,  1912,  eh.  306,  37  Stat.  at  L.  314,  315.  "The 
state  of  Tennessee  is  divided  into  three  districts,  to  be  known 
as  the  eastern,  middle,  and  western  districts  of  Tennessee. 
The  eastern  district  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Bledsoe,  Bradley,  Hamilton,  James,  McMinn, 
Marion,  Meigs,  Polk,  Rhea,  and  Sequatchie,  which  shall 
constitute  the  southern  division  of  said  district;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  coun- 
ties of  Anderson,  Blount,  Campbell,  Claiborne,  Grainger, 
Jefferson,  Knox,  London,  Monroe,  Morgan,  Roane,  Sevier, 
Scott,  and  Union,  which  shall  constitute  the  northern  divi- 

fc  Re-onact.ing   §   547,   R.   S.,   Foster's   Fed.   Prac.    (4th   ed.)    p.  2.~>fl.   Ccmp 


74         MONTGOMERY'S  MANUAL,  OF  FEDERAL  PROCEDURE       §  140 

sion  of  said  district ;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Carter,  Cocke,  Greene, 
Hamblen,  Hancock,  Hawkins,  Johnson,  Sullivan,  Unicoi, 
and  Washington,  which  shall  constitute  the  northeastern 
division  of  said  district.  Terms  of  the  district  court  for 
the  southern  division  of  said  district  shall  be  held  at  Chatta- 
nooga on  the  fourth  Monday  in  April  and  the  second  Monday 
in  November ;  for  the  northern  division,  at  Knoxville  on  the 
fourth  Monday  in  May  and  the  first  Monday  in  December; 
and  for  the  northeastern  division,  at  Greeneville  on  the  first 
Monday  in  March  and  the  third  Monday  in  September. 
The  middle  district  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Bedford,  Cannon,  Cheatham,  Coffee,  Davidson, 
Dickson,  Franklin,  Giles,  Grundy,  Hickman,  Humphreys, 
Houston,  Lawrence,  Lewis,  Lincoln,  Marshall,  Maury,  Mont- 
gomery, Moore,  Robertson,  Rutherford,  Stewart,  Sumner, 
Trousdale,  Warren,  Wayne,  Williamson,  and  Wilson,  which 
shall  constitute  the  Nashville  division  of  said  district;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Clay,  Cumberland,  Dekalb,  Fentress,  Jack- 
son, Macon,  Overton,  Pickett,  Putnam,  Smith,  Van  Buren, 
and  White,  which  shall  constitute  the  northeastern  division 
of  said  district.  Terms  of  the  district  court  for  the  Nash- 
ville division  of  said  district  shall  be  held  at  Nashville  on 
the  second  Monday  in  March  and  the  fourth  Monday  in 
September;  and  for  the  northeastern  division,  at  Cookeville 
on  the  third  Monday  in  April  and  the  first  Monday  in  No- 
vember: Provided,  That  suitable  accommodations  for 
holding  court  at  Cookeville  shall  be  provided  by  the  county 
or  municipal  authorities  without  expense  to  the  United 
States.  The  western  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Dyer,  Fayette,  Haywood,  Lauder- 
dale,  Shelby,  and  Tipton,  which  shall  constitute  the  western 
division  of  said  district;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Benton,  Carroll,  Chest- 
er, Crockett,  Decatur,  Gibson,  Hardeman,  Hardin,  Hender- 
son, Henry,  Lake,  McNairy,  Madison,  Obion,  Perry,  and 
Weakley,  including  the  waters  of  the  Tennessee  River  to 
low-water  mark  on  the  eastern  shore  thereof  wherever  such 

. 

St.  1901,  p.  413,  4  F.  S.  A.  50,  with  amendments  thereto,  20  Stat.  at  L.  235. 
21  Stat.  at  L.  175,  22  Stat.  at  L.  402,  23  Stat.  at  L.  280,  29  Stat.  at  L.  91,  31 
Stat.  at  L.  5,  31  Stat,  at  L.  183. 


§    141  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  75 

river  forms  the  boundary  line  between  the  western  and 
middle  districts  of  Tennessee,  from  the  north  line  of  the 
state  of  Alabama  north  to  the  point  in  Henry  county,  Ten- 
nessee, where  the  south  boundary  line  of  the  state  of  Ken- 
tucky strikes  the  east  bank  of  the  river,  which  shall  con- 
stitute the  eastern  division  of  said  district.  Terms  of  the 
district  court  for  the  western  division  of  said  district  shall 
be  held  at  Memphis  on  the  fourth  Mondays  in  May  and 
November;  and  for  the  eastern  division,  at  Jackson  on  the 
fourth  Mondays  in  April  and  October.  The  clerk  of  the 
court  for  the  western  district  shall  appoint  a  deputy  who 
shall  reside  at  Jackson.  The  marshal  for  the  western  dis- 
trict shall  appoint  a  deputy  who  shall  reside  at  Jackson. 
The  marshal  for  the  eastern  district  shall  appoint  a  deputy 
who  shall  reside  at  Chattanooga.  The  clerk  of  the  court 
for  the  eastern  district  shall  maintain  an  office  in  charge 
of  himself  or  a  deputy  at  Knoxville,  at  Chattanooga  and  at 
Greenville,  which  shall  be  kept  open  at  all  times  for  the 
.  transaction  of  the  business  of  the  court." 

§  141.  Texas. 

§  108,  Judicial  Code}  36  Stat.  at  L.  1125,  Comp.  St. 
1191,  p.  183,  1912  Sup  p.  F.  8.  A.  v.  1,  p.  185.  "The  state 
of  Texas  is  divided  into  four  districts  to  be  known  as  the 
northern,  eastern,  western,  and  southern  districts  of  Texas. 
The  northern  district  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Dallas,  Ellis,  Hunt,  Johnson,  Kaufman,  Xav- 
arro,  and  Rockwall,  which  shall  constitute  the  Dallas  divi- 
sion ;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Archer,  Baylor,  Clay,  Comanche,  Erath, 
Foard,  Hardeman,  Hood,  Jack,  Palo  Pinto,  Parker,  Tar- 
rant,  Wichita,  Wilbarger,  Wise,  and  Young,  which  shall 
constitute  the  Fort  Worth  division;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Arm- 
strong, Bailey,  Briscoe,  Carson,  Castro,  Childress,  Cochran, 
Collingsworth,  Cottle,  Crosby,  Dallam,  Deaf  Smith,  Dick- 
ens, Donley,  Floyd,  Gray,  Hale,  Hall,  Hansford,  Hartley, 
Hemphill,  Hockley,  Hutchinson,  King,  Lamb,  Lipscomb. 
Lubbock,  Moore,  Motley,  Ochiltree,  Oldham,  Farmer,  Pot- 
ter, Randall,  Roberts,  Sherman,  Swisher,  and  Wheeler, 

1  Re-enacting  act  of  March  11,  1902,  ch.  183,  32  Stat.  at  L.  64,  4  F.  S.  A. 
54. 


76          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  141 

which  shall  constitute  the  Amarillo  division;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  counties 
of  Andrews,  Borden,  Callahan,  Dawson,  Eastland,  Fisher, 
Gaines,  Garza,  Haskell,  Howard,  Jones,  Kent,  Knox,  Lynn, 
Martin,  Midland,  Mitchell,  Nolan,  Scurry,  Shackelford, 
Stephens,  Stonewall,  Taylor,  Terry,  Throckmorton,  and 
Yoakum,  which  shall  constitute  the  Abilene  division;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Brown,  Coke,  Coleman,  Concho,  Crockett,  Glass- 
cock,  Irion,  Menard,  Mills,  Runnels,  Schleicher,  Sterling, 
Sutton,  Tom  Green,  and  Upton,  which  shall  constitute  the 
San  Angelo  division  of  the  said  district.  Terms  of  the 
district  court  for  the  Dallas  division  shall  be  held  at  Dallas 
on  the  second  Monday  in  January  and  the  first  Monday  in 
May;  for  the  Fort  Worth  division,  at  Fort  Worth  on  the 
first  Monday  in  November  and  the  second  Monday  in  March ; 
for  the  Amarillo  division,  at  Amarillo  on  the  third  Monday 
in  April  and  the  fourth  Monday  in  September;  for  the 
Abilene  division,  at  Abilene  on  the  first  Monday  in  October 
and  the  second  Monday  in  April ;  and  for  the  San  Angelo 
division,  at  San  Angelo  on  the  third  Monday  in  October 
and  the  fourth  Monday  in  April.  The  clerk  of  the  court 
for  the  northern  district  shall  maintain  an  office  in  charge 
of  himself  or  a  deputy  at  Dallas,  at  Fort  Worth,  at  Amarillo, 
at  Abilene,  and  at  San  Angelo,  which  shall  be  kept  open 
at  all  times  for  the  transaction  of  the  business  of  the  court. 
The  eastern  district  shall  include  the  territory  embraced  on 
the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Anderson,  Angelina,  Cherokee,  Gregg,  Hender- 
son, Houston,  Nacogdoches,  Panola,  Rains,  Rusk,  Smith, 
Van  Zandt,  and  Wood,  which  shall  constitute  the  Tyler 
division;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Hardin,  Jasper,  Jefferson,  Liberty, 
Newton,  Orange,  Sabine,  San  Augustine,  Shelby,  and  Ty- 
ler, which  shall  constitute  the  Beaumont  division ;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  coun- 
ties of  Collin,  Cook,  Denton,  Grayson,  and  Montague,  which 
shall  constitute  the  Sherman  division;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Camp, 
Cass,  Harrison,  Hopkins,  Marion,  Morris  and  Upshur, 
which  shall  constitute  the  Jefferson  division;  also  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties 
of  Delta,  Fannin,  Red  River,  and  Lamar,  which  shall  con- 
stitute the  Paris  division ;  also  the  territory  embraced  on 


141  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  77 

the  date  last  mentioned  in  the  counties  of  Bowie,  Franklin, 
and  Titus,  which  shall  constitute  the  Texarkana  division. 
Terms  of  the  district  court  for  the  Tyler  division  shall  be 
held  at  Tyler  on  the  fourth  Mondays  in  January  and  April ; 
for  the  Jefferson  division,  at  Jefferson  on  the  first  Monday 
in  October  and  the  third  Monday  in  February ;  for  the  Beau- 
mont division,  at  Beaumont  on  the  third  Monday  in  Nov- 
ember and  the  first  Monday  in  April ;  for  the  Sherman  divi- 
sion, at  Sherman  on  the  first  Monday  in  January  and  the 
third  Monday  in  May ;  for  the  Paris  division,  at  Paris 
on  the  third  Monday  in  October  and  the  first  Monday  in 
March;  and  for  the  Texarkana  division,  at  Texarkana 
on  the  third  Monday  in  March  and  the  first  Mon- 
day in  November.  The  clerk  of  the  court  for  the 
eastern  district  shall  maintain  an  office  in  charge  of 
himself  or  a  deputy  at  Sherman,  at  Beaumont,  and  at  Tex- 
arkana, which  shall  be  kept  open  at  all  times  for  the  trans- 
action of  the  business  of  said  court.  The  western  district 
[see  amendment  below]  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Bastrop,  Blanco,  Burleson,  Burnet,  Caldwell,  Gil- 
lespie,  Hays,  Kimble,  Lampasas,  Lee,  Llano,  Mason,  McCui 
loch,  San  Saba,  Travis,  Washington,  and  Williamson,  which 
shall  constitute  the  Austin  division;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Atascosa, 
Bandera,  Bexar,  Comal,  Dimmit,  Edwards,  Frio,  Gonzales, 
Guadalupe,  Karnes,  Kendall,  Kerr,  Medina,  and  Wilson, 
which  shall  constitute  the  San  Antonio  division ;  also  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties  of 
Brewster,  Crane,  Ector,  El  Paso,  Jeff  Davis,  Loving,  Reeves, 
Presidio,  Ward,  and  Winkler,  which  shall  constitute  the  El 
Paso  division ;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Bell,  Bosque,  Coryell,  Falls, 
Hamilton,  Freestone,  Hill,  Leon,  Limestone,  McLennan, 
Milam,  Robertson,  and  Somervell,  which  shall  constitute  the 
Waco  division;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Kinney,  Maverick,  Pecos,  Ter- 
rell, Uvalde,  Valverde,  and  Zavalla,  which  shall  constitute 
the  Del  Rio  division.  Terms  of  the  district  court  for  the 
Austin  division  shall  be  held  at  Austin  on  the  fourth  Mon- 
day in  January  and  the  second  Monday  in  June;  for  the 
Waco  division,  at  Waco  on  the  fourth  Monday  in  February 
and  the  second  Monday  in  November;  for  the  San  Antonio 
division,  at  San  Antonio  on  the  first  Monday  in  May  and 


78         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE       §  141 

the  third  Monday  in  December;  for  the  El  Paso  division, 
at  El  Paso  on  the  first  Monday  in  April  and  the  first  Mon- 
day in  October;  and  for  the  Del  Rio  division,  at  Del  Rio 
on  the  third  Monday  in  March  and  the  fourth  Monday  in 
October.  The  clerk  of  the  court  for  the  western  district 
shall  maintain  an  office  in  charge  of  himself  or  a  deputy 
at  Austin,  El  Paso,  and  at  Del  Rio,  which  shall  be  kept 
open  at  all  times  for  the  transaction  of  business.  The  south- 
ern district  [see  amendment  below]  shall  include  the 
territory  embraced  on  the  first  of  July,  nineteen  hun- 
dred and  ten,  in  the  counties  of  Duval,  La  Salle,  Me- 
Mullen,  Nueces,  Webb,  and  Zapata,  which  shall  con- 
stitute the  Laredo  division;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Cam- 
eron, Hidalgo,  and  Starr,  which  shall  constitute  the  Browns- 
ville division ;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Austin,  Brazoria,  Chambers, 
Galveston,  Fort  Bend,  Matagorda,  and  Wharton,  which  shall 
constitute  the  Galveston  division ;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Brazos, 
Colorado,  Fayette,  Grimes,  Harris,  Lavaca,  Madison,  Mont- 
gomery, Polk,  San  Jacinto,  Trinity,  Walker,  and  Waller, 
which  shall  constitute  the  Houston  division ;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  counties 
of  Bee,  Calhoun,  Dewitt,  Goliad,  Jackson,  Live  Oak,  Re- 
fugio,  Aransas,  San  Patricio,  and  Victoria,  which  shall 
constitute  the  Victoria  division.  Terms  of  the  district 
court  for  the  Galveston  division  shall  be  held  at  Galveston 
on  the  second  Monday  in  January  and  the  first  Monday  in 
June;  for  the  Houston  division,  at  Houston  on  the  fourth 
Mondays  in  February  and  September ;  for  the  Laredo  di- 
vision, at  Laredo  on  the  third  Monday  in  April  and  the  sec- 
ond Monday  in  November;  for  the  Brownsville  division,  at 
Brownsville  on  the  second  Monday  in  May  and  the  first 
Monday  in  December ;  and  for  the  Victoria  division,  at  Vic- 
toria on  the  first  Monday  in  May  and  the  fourth  Monday  in 
November.  The  clerk  of  the  court  for  the  southern  district 
shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at 
each  of  the  places  now  designated  for  holding  court  in  said 
district." 

Act  February  5,  1913,  ch.  28,  37  Stat.  at  L.  663,  creates 
a  new  division  of  the  western  district.  "That  the  counties 
of  Reeves,  Ward,  Martin,  Regan,  Winkler,  Ector,  Gaines, 


§    142  JUDICIAL    DISTRICTS TEKMS    AND    LOCALITIES  79 

Andrews,  Upton,  Midland,  Loving,  Jeff  Davis,  and  Crane 
shall  constitute  a  division  of  the  western  judicial  district  of 
Texas. 

"Sec.  2.  That  terms  of  the  district  court  of  the  United 
States  for  the  said  western  district  of  Texas  shall  be  held 
twice  in  each  year  at  the  city  of  Pecos,  in  Reeves  county,  and 
that,  until  otherwise  provided  by  law,  the  judge  of  said  court 
shall  fix  the  times  at  which  said  court  shall  be  held  at  Pecos, 
of  which  he  shall  make  proclamation  and  give  due  notice: 
Provided,  however,  That  suitable  rooms  and  accommodations 
shall  be  furnished  for  the  holding  of  said  court  and  for  the 
use  of  the  officers  of  said  court  at  Pecos,  free  of  expense  to 
the  government  of  the  United  States." 

Act  May  29,  1912,  ch.  144,  37  Stat.  at  L.  120,  creates  a 
new  division  of  the  southern  district.  "That  the  counties  of 
Bee,  Live  Oak,  Aransas,  San  Patricio,  ^Tueces,  Jim  Wells, 
Duval,  Brooks,  and  Willacy  shall  constitute  a  division  of  the 
southern  judicial  district  of  Texas. 

"Sec.  2.  That  terms  of  the  district  court  of  the  United 
States  for  the  said  southern  district  of  Texas  shall  be  held 
twice  in  each  year  at  the  city  of  Corpus  Christi,  in  Nueces 
county,  and  that,  until  otherwise  provided  by  law,  the  judge 
of  said  court  shall  fix  the  times  at  which  said  court  shall  be 
held  at  Corpus  Christi,  of  which  he  shall  make  publication 
and  give  due  notice." 

§  142.  Utah. 

§  109,  Judicial  Code,™  36  Stat.  at  L.  1127,  Comp.  St. 
19 J 1,  p.  185,  1912  Supp.  F.  S.  A.  v.  1,  p.  187.  "The  state 
of  Utah  shall  constitute  one  judicial  district,  to  be  known 
as  the  district  of  Utah.  It  is  divided  into  two  divisions,  to 
be  known  as  the  northern  and  central  divisions.  The  north- 
ern division  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Boxelder,  Cache,  Davis,  Morgan,  Rich,  and  Weber.  The 
central  division  shall  include  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Beaver,  Carbon, 
Emery,  Garfield,  Grand,  Iron,  Juab,  Kane,  Millard,  Piute, 
Salt  Lake,  San  Juan,  San  Pete,  Sevier,  Summit,  Tooele, 
Uinta,  Utah,  Wasatch,  Washington,  and  Wayne.  Terms  of 
the  district  court  for  the  northern  division  shall  be  held  at 

M»  Re-enacting  28  Stat.  at  L.  110,  4  F.  S.  A.  57,  with  amendment  thereto, 
29  Stat.  at  L.  620,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  208,  264. 


80          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE       §  144 

Ogden  on  the  second  Mondays  in  March  and  September; 
and  for  the  central  division,  at  Salt  Lake  City  on  the  second 
Mondays  in  April  and  November.  The  clerk  of  the  court 
for  said  district  shall  maintain  an  office  in  charge  of  himself 
or  a  deputy  at  each  of  the  places  where  the  court  is  now  re- 
quired to  be  held  in  the  district." 

§  143.  Vermont. 

§  110,  Judicial  Code?  36  Stat.  at  L.  1127,  Comp.  St. 
1911,  p.  185,  1912  Supp.  F.  8.  A.  v.  1,  p.  187,  as  amended 
Feb.  1,  1912,  ch.  26,  37  Stat  at  L.  58.  "The  state 
of  Vermont  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Vermont.  Terms  of  the  district 
court  shall  be  held  at  Burlington  on  the  fourth  Tuesday  in 
February,  at  Windsor  on  the  third  Tuesday  in  May,  at  Rut- 
land on  the  first  Tuesday  in  October,  and  at  Brattleboro  on 
the  third  Tuesday  in  December.  In  each  year  one  of  the 
stated  terms  of  the  district  court  may,  when  adjourned,  be 
adjourned  to  meet  at  Montpelier,  and  one  at  Newport :  Pro- 
vided, however,  That  suitable  rooms  and  accommodations 
shall  be  furnished  for  the  holdings  of  said  court  and  for  the 
use  of  the  officers  of  said  court  at  Brattleboro,  free  of  expense 
to  the  government  of  the  United  States,  until  the  public  build- 
ing provided  for  by  act  of  Congress  shall  be  erected." 

144.  Virginia. 

§  111,  Judicial  Code,0  36  Stat.  at  L.  1127,  Comp.  St. 
1911,  p.  186,  1912  Supp.  F.  S.  A.  v.  1,  pp.  187,  188.  "The 
state  of  Virginia  is  divided  into  two  districts,  to  be  known  as 
the  eastern  and  western  districts  of  Virginia.  The  eastern 
district  shall  include  the  territory  embraced  on  the  first  day 
of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Ac- 
comae,  Alexandria,  Amelia,  Brunswick,  Caroline,  Charles 
City,  Chesterfield,  Culpepper,  Dinwiddie,  Elizabeth  City, 
Essex,  Fairfax,  Fauquier,  Gloucester,  Goochland,  Greens- 
ville,  Hanover,  Henrico,  Isle  of  Wight,  James  City,  King 
and  Queen,  King  George,  King  William,  Lancaster,  Lou- 
doun,  Louisa,  Lunenberg,  Mathews,  Mecklenburg,  Middle- 
sex^ Nansemond,  New  Kent,  Norfolk,  Northampton,  North- 

n  Re-enacting  §  531,  R.  S.  (see  Ref.  §  104,  supra)  Comp.  St.  1901,  p.  316, 
4  F.  S.  A.  16. 

o  Re-enacting  §  549,  R.  S.,  Foster's  Fed.  Prac.  (4th  ed.)  p.  265,  Comp. 
St.  1901,  p.  437,  4  F.  S.  A.  57. 


§    145  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  81 

umberland,  Nottoway,  Orange,  Powhatan,  Prince  Edward, 
Prince  George,  Prince  William,  Princess  Anne,  Richmond, 
Southampton,  Spottsylvania,  Stafford,  Surry,  Sussex,  War- 
wick, Westmoreland,  and  York.  Terms  of  the  district  court 
shall  be  held  at  Richmond  on  the  first  Mondays  in  April 
and  October;  at  Norfolk  on  the  first  Mondays  in  May  and 
November ;  and  at  Alexandria  on  the  first  Mondays  in  Jan- 
uary and  July.  The  western  district  shall  include  the  ter- 
ritory embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Alleghany,  Albermarle,  Amherst, 
Appomattox,  Augusta,  Bath,  Bedford,  Bland,  Botetourt, 
Buchanan,  Buckingham,  Campbell,  Carroll,  Charlotte, 
Clarke,  Craig,  Cumberland,  Dickenson,  Floyd,  Fluvanna, 
Franklin,  Frederick,  Giles,  Grayson,  Greene,  Halifax, 
Henry,  Highland,  Lee,  Madison,  Montgomery,  Nelson,  Page, 
Patrick,  Pulaski,  Pittsylvania,  Rappahaimock,  Roanoke, 
Rockbridge,  Rockingham,  Russell,  Scott,  Shenandoah, 
Smyth,  Tazewell,  Warren,  Washington,  Wise,  and  Wythe. 
Terms  of  the  district  court  shall  be  held  at  Lynchburg  on 
the  Tuesdays  after  the  second  Mondays  in  March  and  Sep- 
tember; at  Danville  on  the  Tuesdays  after  the  second  Mon- 
days in  April  and  November ;  at  Abingdon  on  the  Tuesdays 
after  the  first  Mondays  in  May  and  October ;  at  Harrison- 
burg  on  the  Tuesdays  after  the  first  Mondays  in  June  and 
December;  at  Charlottesville  on  the  second  Monday  in 
January  and  the  first  Monday  in  July;  at  Roanoke  on  the 
third  Monday  in  February  and  the  third  Monday  in  June; 
and  at  Big  Stone  Gap  on  the  fourth  Monday  in  January 
and  the  second  Monday  in  August.  The  clerk  of  the  court 
for  the  western  district  shall  maintain  an  office  in  charge 
of  himself  or  a  deputy  at  Lynchburg,  at  Danville,  at  Char- 
lottesville, at  Roanoke,  at  Abingdon,  and  at  Big  Stone  Gap, 
which  shall  be  kept  open  at  all  times  for  the  transaction  of 
the  business  of  the  court." 

§  145.  Washington. 

§  112,  Judicial  Code?  36  Stat.  at  L.  1128,  Camp.  St. 
19 11,  p.  186,  1912  Supp.  F.  8.  A.  v.  1,  p.  188.  "The  state 
of  Washington  is  divided  into  two  districts,  to  be  known  as 
the  eastern  and  western  district  of  Washington.  The  east- 
ern district  shall  include  the  territory  embraced  on  the  first 

p  Ro-onacting  act  of  April  5,  1890,  ch.  65,  26  Stat,  ;it  L.  45.  Foster's  Fed. 
Prac.   (4th  ed.)  pp.  208,  265,  Comp.  St.  1901,  p.  438r  4  F.  S.  A.  57. 
Montg. — 6. 


82         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE       §  146 

day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Spokane,  Stevens,  Ferry,  Okanogan,  Chelan,  Grant,  Doug- 
las, Lincoln,  and  Adams,  with  the  waters  thereof,  includ- 
ing all  Indian  reservations  within  said  counties,  which  shall 
i  constitute  the  northern  division ;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Asotin, 
Garfield,  Whitman,  Columbia,  Franklin,  Walla  Walla,  Ben- 
ton,  Klickitat,  Kittitas,  and  Yakima,  with  the  waters  there- 
of, including  all  Indian  reservations  within  said  counties, 
which  shall  constitute  the  southern  division  of  said  district. 
Term's  of  the  district  court  for  the  northern  division  shall 
be  held  at  Spokane  on  the  first  Tuesdays  in  April  and  Sep- 
tember; for  the  southern  division,  at  Walla  Walla  on  the 
first  Tuesdays  in  June  and  December,  and  at  North  Yak- 
ima, on  the  first  Tuesdays  in  May  and  October.  The  west- 
ern district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Whatcom,  Skagit,  Snohomish,  King,  San  Juan,  Island, 
Kitsap,  Clallam,  and  Jefferson,  with  the  waters  thereof,  in- 
cluding all  Indian  reservations  within  said  counties,  which 
shall  constitute  the  northern  division;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Pierce, 
Mason,  Thurston,  Chehalis,  Pacific,  Lewis,  Wahkiakum, 
Cowlitz  Clarke,  and  Skamania,  with  the  waters  thereof,  in- 
cluding all  Indian  reservations  within  said  counties,  which 
shall  constitute  the  southern  division  of  said  district.  Terms 
of  the  district  court  for  the  northern  division  shall  be  held 
at  Bellingham  on  the  first  Tuesdays  in  April  and  October; 
at  Seattle  on  the  first  Tuesdays  in  May  and  November ;  and 
for  the  southern  division,  at  Tacoma  on  the  first  Tuesdays 
in  February  and  July.  The  clerks  of  the  courts  for  the 
eastern  and  western  districts  shall  maintain  an  office  in 
charge  of  himself  or  a  deputy  at  each  place  in  their  respec- 
tive districts  where  terms  of  court  are  now  required  to  be 
held." 

§  146.  West  Virginia. 

§  118,  Judicial  Code*  36  Stat.  at  L.  1129,  Comp.  8t. 
1911,  p.  181,  1912  Supp.  F.  S.  A.  1,  p.  189,  as  amended 
March  23,  1912,  cli.  63,  37  Stat.  at  L.  76.  "The  state  of 
West  Virginia  is  divided  into  two  districts,  to  be  known 

«i  Re-enacting  act  of  Jan.  22,  1901,  ch.  105,  31   Stat.  at  L.  736.  Comp.  St. 
t901,  p.  440,  4  F.  S.  A.  58. 


§    147  JUDICIAL    DISTRICTS TEEMS    AND    LOCALITIES  83 

as  the  northern  and  southern  districts  of  West  Virginia. 
The  northern  district  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Hancock,  Brooke,  Ohio,  Marshall,  Tyler,  Pleas- 
ants,  Wood,  Wirt,  Ritchie,  Dodridge,  Wetzel,  Monongalia, 
Marion,  Harrison,  Lewis,  Gilmer,  Calhoun,  TJpshur,  Bar- 
hour,  Taylor,  Preston,  Tucker,  Randolph,  Pendleton,  Hardy, 
Grant,  Mineral,  Hampshire,  Morgan,  Berkeley,  and  Jeffer- 
son, with  the  waters  thereof.  Terms  of  the  district  court 
for  the  northern  district  shall  be  held  at  Martinsburg  on  the 
first  Tuesday  of  April  and- the  third  Tuesday  of  September; 
at  Clarksburg  on  the  second  Tuesday  of  April  and  the  first 
Tuesday  of  October ;  at  Wheeling  on  the  first  Tuesday  of  May 
and  the  third  Tuesday  of  October ;  at  Philippi  on  the  fourth 
Tuesday  of  May  and  the  second  Tuesday  of  November;  at 
Parkersburg  on  the  second  Tuesday  of  January  and  second 
Tuesday  of  June :  Provided,  That  a  place  for  holding  court 
at  Philippi  shall  be  furnished  free  of  cost  to  the  United  States 
by  Barbour  county  until  other  provision  is  made  therefor 
by  law.  The  southern  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Jackson,  Roane,  Clay,  Braxton,  Web- 
ster, Nicholas,  Pocahontas,  Greenbrier,  Fayette,  Boone,  Ka- 
nawha,  Putnam,  Mason,  Cabell,  Wayne,  Lincoln,  Logan, 
Mingo,  Raleigh,  Wyoming,  McDowell,  Mercer,  Summers, 
and  Monroe,  with  the  waters  thereof.  Terms  of  the  district 
court  for  the  southern  district  shall  be  held  at  Charleston 
on  the  first  Tuesday  in  June  and  the  third  Tuesday  in  Nov- 
ember ;  at  Hunting-ton,  on  the  first  Tuesday  in  April  and  the 
first  Tuesday  after  the  third  Monday  in  September;  at 
Bluefield  on  the  first  Tuesday  in  May  and  the  third  Tues- 
day in  October;  at  Addison,  on  the  first  Tuesday  in  Sep- 
tember; and  at  Lewisburg,  on  the  second  Tuesday  in  July: 
Provided,  That  a  place  for  holding  court  at  Addison  shall  be 
furnished  free  of  cost  to  the  United  States." 

§  147.  Wisconsin. 

§  114,  Judicial  Code*  36  8 tat.  at  L.  1129,  Comp.  St. 
1911,  p.  188,  1912  Supp.  F.  8.  A.  v.  1,  p.  189.  "The  state 
of  Wisconsin  is  divided  into  two  districts,  to  be  known  as 
the  eastern  and  western  districts  of  Wisconsin.  The  east- 

«•  Re-enacting   §   550.   R.   S.,   Foster's   Fed.   Prac.    (4th   ed.)    p.  267,   Comp. 
St.  1901,  p.  443,  4  F.  S.  A.  59. 


84  MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  147 

ern  districts  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Brown,  Calumet,  Dodge,  Door,  Florence,  Fond  du  Lac,  For- 
est, Green  Lake,  Kenosha,  Kewaunee,  Langlade,  Manitowoc, 
Marinette,  Marquette,  Milwaukee,  Oconto,  Outagamie,  Oz- 
aukee,  Racine,  Shawano,  Shehoygan,  Walworth,  Washing- 
ton, Waukesha,  Waupaca,  Waushara,  and  Winnebago. 
Terms  of  the  district  court  for  said  district  shall  be  held  at 
Milwaukee  on  the  first  Mondays  in  January  and  October; 
at  Oshkosh  on  the  second  Tuesday  in  June;  and  at  Green 
Bay  on  the  first  Tuesday  in  April.  The  western  district 
shall  include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten,  in  the  counties  of  Adams,  Ash- 
land, Barren,  Bayfield,  Buffalo,  Burnett,  Chippewa,  ("lark, 
Columbia,  Crawford,  Dane,  Dunn,  Douglas,  Eau  Claire, 
Grant,  Green,  Iowa,  Iron,  Jackson,  Jefferson,  Juneau,  La 
Crosse,  Lafayette,  Lincoln,  Marathon,  Monroe,  Oneida,  Pep- 
in,  Pierce,  Polk,  Portage,  Price,  Richland,  Rock,  Rusk,  Saint 
Croix,  Sauk,  Sawyer,  Taylor,  Trempealeau,  Vernon,  Vilas, 
Washburn,  and  Wood,  Terms  of  the  district  court  for  said 
district  shall  be  held  at  Madison  on  the  first  Tuesday  in 
December;  at  Eau  Claire  on  the  first  Tuesday  in  June;  at 
La  Crosse  on  the  third  Tuesday  in  September;  and  at  Su- 
perior on  the  fourth  Tuesday  in  January  and  the  second 
Tuesday  in  July.  The  district  court  for  each  of  said  dis- 
tricts shall  be  open  at  all  times  for  the  purpose  of  hearing 
and  deciding  causes  of  admiralty  and  maritime  jurisdiction, 
so  far  as  the  same  can  be  done  without  a  jury.  The  clerk 
of  the  court  for  the  western  district  shall  maintain  an  office 
in  charge  of  himself  or  a  deputy  at  Madison,  at  La  Crosse, 
and  at  Superior,  which  shall  be  kept  open  at  all  times  for  the 
transaction  of  the  business  of  the  court.  The  marshal  for 
the  western  district  shall  appoint  a  deputy  marshal  who 
shall  reside  and  keep  his  office  at  Superior.  All  writs  and 
other  process,  except  criminal  warrants,  issued  at  Superior, 
may  be  made  returnable  at  Superior;  and  the  clerk  at  that 
place  shall  keep  in  his  office  the  original  records  of  all  actions, 
prosecutions,  and  special  proceedings  so  commenced  and 
pending  therein.  Criminal  warrants  may  be  returned  at 
any  place  within  the  district  where  court  is  held.  Whenever 
warrants  issued  at  Superior  shall  be  returned  at  any  other 
place,  the  clerk  of  the  court  wherein  the  warrant  is  re- 
turned, shall  certify  the  same,  under  the  seal  of  the  court, 
together  with  the  plea  and  other  proceedings  had  thereon, 


§    148  JUDICIAL    DISTRICTS TERMS    AND    LOCALITIES  85 

and  the  determination  of  the  court  upon  such  plea  or  pro- 
ceeding's, with  all  papers  and  orders  filed  in  reference  there- 
to, to  the  clerk  of  the  court  at  Superior;  and  the  clerk  at 
Superior  shall  enter  upon  his  records  a  minute  of  the  proceed- 
ings had  upon  the  return  of  said  warrant,  certified  as  afore- 
said. All  causes  and  proceedings  instituted  in  the  court  at 
Superior,  shall  be  tried  therein,  unless  by  consent  of  the 
parties,  or  upon  the  order  of  the  court,  they  are  transferred 
to  another  place  for  trial." 

§  148.  Wyoming. 

§  115,  Judicial  Code*  36  8 tat.  at  L.  1130,  Comp.  St. 
1911,  p.  189,  1912  Supp.  F.  S.  A.  v.  1,  p.  190.  "The  state 
of  Wyoming  and  the  Yellowstone  National  Park  shall  con- 
stitute one  judicial  district,  to  be  known  as  the  district  of 
Wyoming.  Terms  of  the  district  court  for  said  district 
shall  be  held  at  Cheyenne  on  the  second  Mondays  in  May 
and  November ;  at  Evanston  on  the  second  Tuesday  in  July ; 
and  at  Lander  on  the  first  Monday  in  October;  and  the  said 
court  shall  hold  one  session  annually  at  Sheridan,  and  in 
said  national  park,  on  such  dates  as  the  court  may  order. 
The  marshal  and  clerk  of  the  said  court  shall  each,  respec- 
tively, appoint  at  least  one  deputy  to  reside  at  Evanston, 
and  one  to  reside  at  Lander,  unless  he  himself  shall  reside 
there,  and  shall  also  maintain  an  office  at  each  of  those  places : 
Provided,  That  until  a  public  building  is  provided  at  Land- 
er, suitable  accommodations  for  holding  court  in  said  town 
shall  be  furnished  the  government  at  an  expense  not  to  ex- 
ceed three  hundred  dollars  annually.  The  marshal  of  the 
United  States  for  the  said  district  may  appoint  one  or  more 
deputy  marshals  for  the  Yellowstone  National  Park,  who 
shall  reside  in  said  park." 

•  Re-enacting  26  Stat.  at  L.  225,  Foster's  Fed.  Prac.    (4th  ed.)    p.  268,  4 
F.  S.  A.  59. 


CHAPTER    5. 

VENUE  OF  ACTIONS  IN  THE  DISTRICT  COURT— TERRITORIAL  JURIS- 
DICTION. 

Sec. 

160.  In  General. 

161.  Civil  Suits — In  General. 

162.  Nonlocal  Suits  in  State  of  More  than  One  District. 

163.  Nonlocal  Suits  Where  District  Contains  More  than  One  Division. 

164.  Local  Suits  with  Defendant  in  Another  District  Same  State. 

165.  Local    Suits    with    Subject-Matter    Lying    Partly    in    One    District    and 

Partly    in    Another. 

166.  Liens — Clouds  on  Title — Absent  Defendant. 

167.  Receiver's  Jurisdiction  over  Real  Property  Outside  District  in   Circuit. 

168.  Transfer  to  Another  Division  on  Stipulation. 

169.  On  Creation  of  New  District  or  Division  or  Transfer  of  Territory. 

170.  Same — Preservation    and    Enforcement   of    Liens. 

171.  Infringement    of    Letters    Patent. 

172.  To  Enjoin   Comptroller  of  Currency. 

173.  Part  of  Several  Defendants  Not  Found. 

174.  Crimes  and  Offenses. 

175.  Penalties  and   Forfeitures. 

176.  Taxes  and  Internal  Revenue. 

177.  Condemnation  Insurrectionary  Property. 

178.  Seizures   for   Forfeiture — Embargo   or   Insurrection. 

179.  Prosecutions  for   Failure  to   File   Tariffs,   Giving   Rebates,  etc. 

180.  Venue  of  Suits  Affecting  Orders  of  Interstate  Commerce  Commission. 

181.  Issue  of  Venue — How  Raised. 

§  160.  In  General.  In  considering  the  subject  of  venue,  the 
Federal  district  or  division  corresponds  to  the  county  in  state 
systems. 

The  distinctions  exist  in  the  Federal  as  in  the  state  practice 
respecting  suits  of  local  and  suits  transitory  in  their  nature.  Suits 
of  a  local  nature  must  be  brought  in  the  district  in  which  lies 
some  part  of  the  land  or  other  property  of  a  fixed  character,  the 
subject  of  the  suit. 

86 


§    100  VENUE  OF  ACTIONS  IN  THE  DISTRICT  COURT  87 

Suits  not  of  a  local  nature  should  be  brought  in  the  district 
whereof  the  defendant  is  an  inhabitant,1  except  where  the  juris- 
diction is  founded  only  on  the  fact  that  the  action  is  between  citi- 
zens of  different  states,  in  which  case  the  suit  shall  be  brought  only 
in  the  district  of  residence  of  either  the  plaintiff  or  the  defend- 
ant.8 

Where  there  is  more  than  one  district  in  a  state  and  several  de- 
fendants in  a  suit  not  of  a  local  nature,  it  may  be  brought  where 
any  of  the  defendants  reside  and  process  issued  to  the  other  de- 
fendants residing  in  other  districts  in  the  state.3 

In  like  manner,  where  there  is  more  than  one  division  in  a  dis- 
trict and  several  defendants  in  a  suit  not  of  local  nature,  the  suit 
may  be  brought  in  the  division  of  the  residence  of  any  of  the  de- 
fendants and  process  issued  to  the  other  defendants  in  other  di- 
visions and  districts  in  the  state.4 

Suits  of  local  nature  should  be  brought  where  the  land  lies,  and 
if  a  defendant  resides  in  a  different  district  in  the  same  state,  or- 
iginal process  may  be  served  on  him  therein.6 

If  the  suit  is  of  local  nature  and  the  subject-matter  lies  partly  in 
one  district  and  partly  in  another  within  the  same  state,  suit  may 
be  brought  in  either  district.6 

In  suits  to  enforce  any  legal  or  equitable  lien  upon,  or  claim  to, 
or  to  remove  any  encumbrance  or  lien  or  cloud  upon  the  title  to, 
real  or  personal  property  within  the  district  where  the  suit  is 
brought,  service  may  be  made  on  nonresident  or  absent  defendants 
by  publication.7 

In  a  suit  in  which  a  receiver  is  appointed,  where  the  land  or 
other  property  of  a  fixed  character,  the  subject  of  the  suit,  lies 
within  different  states  in  the  same  circuit,  the  receiver  upon  proper 
proceedings  may  control  same,  although  outside  the  district  of  his 
appointment.8 

There  are  special  provisions  relating  to  crimes  and  offenses;8 
penalties  and  forfeitures ;  10  taxes  and  internal  revenue ;  u  seiz- 
ures,12 patent  cases,18  suits  against  the  Comptroller  of  Currency.14 

1  §  161,  infra.  2  Ibid.  8  §  162,  infra.  *  §  163,  infra. 

5§  164,   infra.  «§   1^5,   infra.  '§   166,  infra.  8§   167,  infra. 

»§  174,  infra.  10  §  175,  infra.  "  §  176,  infra.  12  §§  177,  178,  infra 

13  §  171,  infra,  "  §  172,  infra. 


88  MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  162 

§  161.  Civil  Suits — In  General. 

§  51,  Judicial  Code,*  36  Stat.  at  L.  1101,  Comp.  St.  1911, 
p.  150,  1912  Supp.  F.  8.  A.  v.  1,  p.  153.  "Except  as  pro- 
vided in  the  five  succeeding  sections,  no  person  shall  be  arrest- 
ed in  one  district  for  trial  in  another,  in  any  civil  action 
before  a  district  court;  and,  except  as  provided  in  the  six 
succeeding  sections,  no  civil  suit  shall  be  brought  in  any  dis- 
trict court  against  any  person  by  any  original  process  or  pro- 
ceeding in  any  other  district  than  that  whereof  he  is  an  in- 
habitant ;  but  where  the  jurisdiction  is  founded  only  on  the 
fact  that  the  action  is  between  citizens  of  different  states, 
suit  shall  be  brought  only  in  the  district  of  the  residence  of 
either  the  plaintiff  or  the  defendant." 

This  section  is  substantially  what  was  already  the  law,  except 
that  circuit  courts  have  been  abolished.  Rose's  Code  treats  the  sub- 
ject in  §§  401-401a-b-c-cc-ccc-d-f. 

§  162.  Nonlocal  Suits  in  State  of  More  than  One  District. 

§  52,  Judicial  Code?  36  Stat.  at  L.  1101,  Comp.  St.  1911, 
p.  150,  1912  Supp.  F.  8.  A.  v.  1,  pp.153-4.  "When  a  state 
contains  more  than  one  district,  every  suit  not  of  a  local  na- 
ture, in  the  district  court  thereof,  against  a  single  defendant, 
inhabitant  of  such  state,  must  be  brought  in  the  district  where 
he  resides ;  but  if  there  are  two  or  more  defendants,  residing 
in  different  districts  of  the  state,  it  may  be  brought  in  either 
district,  and  a  duplicate  writ  may  be  issued  against  the  de- 
fendants, directed  to  the  marshal  of  any  other  district  in 
which  any  defendant  resides.  The  clerk  issuing  the  dupli- 
cate writ  shall  indorse  thereon  that  it  is  a  true  copy  of  a 
writ  sued  out  of  the  court  of  the  proper  district ;  and  such 
original  and  duplicate  writs,  when  executed  and  returned 
into  the  office  from  which  they  issue,  shall  constitute  and  be 
proceeded  on  as  one  suit;  and  upon  any  judgment  or  decree 
rendered  therein,  execution  may  be  issued,  directed  to  the 
marshal  of  any  district  in  the  same  state." 

a  Embracing  §  739.  R.  S.,  4  F.  S.  A.  554,  as  modified  in  25  Stat.  at  L. 
434,  Comp.  St.  1901,  p.  508,  4  F.  S.  A.  265,  which  are  repealed  by  §  297, 
Judicial  Code.  Macon  Grocery  Co.  v.  Atlantic  Coast  Line  R.  R.  Co.  215  U. 
S.  501,  54  L.  ed.  300,  30  Sup.  Ct.  Rep.  184. 

1»  Re-enacting  §  740.  R.  S.,  Rose's  Code,  §§  402,  854,  Foster's  Fed.  Prac. 
(4th  ed.)  p.  206,  Comp.  St.  1901,  p.  587,  4  F.  S.  A.  554.  which  section  is 
repealed  bv  §  297,  Judicial  Code.  In  general,  Matter  of  Albert  N.  Moore,  An 
Infant,  209  U.  S.  490,  52  L.  ed.  904,  28  Sup.  Ct.  Rep.  585,  14  Ann.  Cas.  1164. 


§    164          VENUE    OF    ACTIONS    IN    THE    DISTRICT    COURT  89 

§  163.  Nonlocal  Suits  Where  District  Contains  More  than 
One  Division. 

§  53,  Judicial  Code?  36  Stat.  at  L.  1101,  Comp.  St.  1911, 
p.  150,  1912  Supp.  F.  8.  A.  v.  1,  p.  154.  "When  a  district 
contains  more  than  one  division,  every  suit  not  of  a  local  na- 
ture against  a  single  defendant  must  be  brought  in  the  di- 
vision where  he  resides ;  but  if  there  are  two  or  more  defend- 
ants residing  in  different  divisions  of  the  district  it  may  be 
brought  in  either  division.  All  mesne  and  final  proc- 
ess subject  to  the  provisions  of  this  section  may  be 
served  and  executed  in  any  or  all  of  the  divisions  of 
the  district,  or  if  the  state  contains  more  than  one  dis- 
trict, then  in  any  of  such  districts,  as  provided  in  the 
preceding  section.  All  prosecutions  for  crimes  or  of- 
fenses shall  be  had  within  the  division  of  such  districts 
where  the  same  were  committed,  unless  the  court,  or  the 
judge  thereof,  upon  the  application  of  the  defendant,  shall 
order  the  cause  to  be  transferred  for  prosecution  to  another 
division  of  the  district.  When  a  transfer  is  ordered  by  the 
court  or  judge,  all  the  papers  in  the  case,  or  certified  copies 
thereof,  shall  be  transmitted  by  the  clerk,  under  the  seal  of 
the  court,  to  the  division  to  which  the  cause  is  so  ordered 
transferred ;  and  thereupon  the  cause  shall  be  proceeded  with 
in  said  division  in  the  same  manner  as  if  the  offense  had  been 
committed  therein.  In  all  cases  of  the  removal  of  suits  from 
the  courts  of  a  state  to  the  district  court  of  the  United  States 
such  removal  shall  be  to  the  United  States  district  court  in 
the  division  in  which  the  county  is  situated  from  which  the 
removal  is  made;  and  the  time  within  which  the  removal 
shall  be  perfected,  in  so  far  as  it  refers  to  or  is  regulated  by 
the  terms  of  United  States  courts,  shall  be  deemed  to  refer 
to  the  terms  of  the  United  States  district  court  in  such  di- 
vision." 

This  section  supersedes  a  great  many  acts  creating  divisions  of 
districts  mentioned  in  Rose's  Code,  §§  405,  406-412. 

§  164.  Local  Suits  with   Defendant  in  Another  District 
Same  State. 

§  54,  Judicial  Code?  36  Stat  at  L.  1102,  Comp.  St.  1911, 

c  Superseding  a  number  of  particular  sections,  31  Stat.  at  L.  220,  21  Stat. 
at  L.  63,  31  Stat.  at  L.  818,  34  Stat.  at  L.  207,  1909,  Supp.  F.  S.  A.  301. 

d  Re-enacting  §   741,  R.   S.,  Rose's  Code,   §   855,   Foster's   Fed.   Prac.    (4th 


90          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  16G 

p.  151,  1912  Supp.  F.  8.  A.  v.  1,  p.  155.'  "Any  suit  of  a 
local  nature,  where  the  defendant  resides  in  a  different  dis- 
trict, in  the  same  state,  from  that  in  which  the  suit  is  brought, 
the  plaintiff  may  have  original  and  final  process  against 
him,  directed  to  the  marshal  of  the  district  in  which  he 
resides." 

§  165.  Local  Suits  with  Subject-Matter  Lying  Partly  in 
One  District  and  Partly  in  Another. 

§  55,  Judicial  Code*  36  Stat.  at  L.  1102,  Comp.  St.  1911, 
p.  151,  1912  Supp.  F.  8.  A.  v.  1,  p.  155.  "Any  suit  of  a 
local  nature,  at  law  or  in  equity,  where  the  land  or  other  sub- 
ject-matter of  a  fixed  character  lies  partly  in  one  -district 
and  partly  in  another,  within  the  same  state,  may  be  brought 
in  the  district  court  of  either  district;  and  the  court  in 
which  it  is  brought  shall  have  jurisdiction  to  hear  and  decide 
it,  and  to  cause  mesne  or  final  process  to  be  issued  and  execut- 
ed, as  fully  as  if  the  said  subject-matter  were  wholly  within 
the  district  for  which  such  court  is  constituted." 

§  166.  Liens — Clouds  on  Title — Absent  Defendant. 

§  57,  Judicial  Code,*  36  Stat.  at  L.  1102,  Comp.  St.  1911, 
p.  152,  1912  Supp.  F.  S.  A.  v.  1,  pp.  155-6.  "When  in  any 
suit  commenced  in  any  district  court  of  the  United  States  to 
enforce  any  legal  or  equitable  lien  upon  or  claim  to,  or  to 
remove  any  encumbrance  or  lien  or  cloud  upon,  the  title  to 
real  or  personal  property  within  the  district  where  such  suit 
is  brought,  one  or  more  of  the  defendants  therein  shall  not 
be  an  inhabitant  of  or  found  within  the  said  district,  or  shall 
not  voluntarily  appear  thereto,  it  shall  be  lawful  for  the 
court  to  make  an  order  directing  such  absent  defendant  or 
defendants  to  appear,  plead,  answer,  or  demur  by  a  day  cer- 
tain to  be  designated,  which  order  shall  be  served  on  such 
absent  defendant  or  defendants,  if  practicable,  whenever 
found,  and  also  upon  the  person  or  persons  in  possession  or 
charge  of  said  property,  if  any  there  be;  or  where  such  per- 

ed.)  pp.  206,  437,  Comp.  St.  1901,  p.  588,  4  F.  S.  A.  555,  which  section  is  re- 
pealed bv  §  297,  Judicial  Code.  In  general,  Greeley  v.  Lowe,  155  U.  S.  58, 
39  L.  ed.*  69,  15  Sup.  Ct.  Eep.  24. 

e  Re-enacting  §  742.  R.  S.,  Rose's  Code,  §  403,  Foster's  Fed.  Prac.  (4th 
ed.)  pp.  206,  437,  Comp.  St.  1901,  p.  588,  4  F.  S.  A.  555,  which  section  is  re- 
galed bv  §  297,  Judicial  Code.  In  general,  Greeley  v.  Lowe,  supra. 

'Re-enacting  18  Stat.  at  L.  472,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  449,  958, 
1016,  1022,  1457.  1614,  Comp.  St.  1901,  p.  513,  4  F.  S.  A.  380,  which  statute  is 


§    167  VENUE    OF    ACTIONS    IN    THE    DISTRICT    COURT  91 

sonal  service  upon  such  absent  defendant  or  defendants  is  not 
practicable,  such  order  shall  be  published  in  such  manner  as 
the  court  may  direct,  not  less  than  once  a  week  for  six  con- 
secutive weeks.  In  case  such  absent  defendant  shall  not  ap- 
pear, plead,  answer,  or  demur  within  the  time  so  limited, 
or  within  some  further  time,  to  be  allowed  by  the  court,  in 
its  discretion,  and  upon  proof  of  the  service  or  publication  of 
said  order  and  of  the  performance  of  the  directions  contained 
in  the  same,  it  shall  be  lawful  for  the  court  to  entertain  juris- 
diction, and  proceed  to  the  hearing  and  adjudication  of  such 
suit  in  the  same  manner  as  if  such  absent  defendant  had  been 
served  with  process  within  the  said  district;  but  said  adju- 
dication shall,  as  regards  said  absent  defendant  or  defend- 
ants without  appearance,  affect  only  the  property  which  shall 
have  been  the  subject  of  the  suit  and  under  the  jurisdiction 
of  the  court  therein,  within  such  district ;  and  when  a  part 
of  the  said  real  or  personal  property  against  which  such  pro- 
ceedings shall  be  taken  shall  be  within  another  district,  but 
within  the  same  state,  such  suit  may  be  brought  in  either  dis- 
trict in  said  state :  Provided,  however,  That  any  defendant  or 
defendants  not  actually  personally  notified  as  above  provided 
may,  at  any  time  within  one  year  after  final  judgment  in  any 
suit  mentioned  in  this  section,  enter  his  appearance  in  said 
suit  in  said  district  court,  and  thereupon  the  said  court  shall 
make  an  order  setting  aside  the  judgment  therein  and  per- 
mitting said  defendant  or  defendants  to  plead  therein  on 
payment  by  him  or  them  of  such  costs  as  the  court  shall  deem 
just ;  and  thereupon  said  suit  shall  be  proceeded  with  to  final 
judgment  according  to  law." 

§  167.  Receiver's  Jurisdiction  over  Real  Property  Outside 
District  in  Circuit. 

§  56,  Judicial  Code*  36  Stat.  at  L.  1102,  Comp.  St.  1911, 
p.  151,  1912  Supp.  F.  8.  A.  v.  1,  p.  155.  "Where  in  any  suit 
in  which  a  receiver  shall  be  appointed  the  land  or  other 
property  of  a  fixed  character,  the  subject  of  the  suit,  lies 
within  different  states  in  the  same  judicial  circuit,  the  re- 
ceiver so  appointed  shall,  upon  giving  bond  as  required  by 
the  court,  immediately  be  vested  with  full  jurisdiction  and 

repealed  by  §  297,  Judicial  Code.     In  general,  Ladew  v.  Tonn.  Copper  Co.  218 
U.  S.  357/54  L.  ed.  1069,  31  Sup.  Ct.  Rep.  81;  Chase  v.  Wetzlar  Excr.  225  U. 
S.  79,  56  L.  ed.  990,  32  Sup.  Ct.  Rep.  659. 
K  This  is  new  legislation. 


92  MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  168 

control  over  all  the  property,  the  subject  of  the  suit,  lying  or 
being  within  such  circuit ;  subject,  however,  to  the  disapprov- 
al of  such  order,  within  thirty  days  thereafter,  by  the  circuit 
court  of  appeals  for  such  circuit,  or  by  a  circuit  judge  there- 
of, after  reasonable  notice  to  adverse  parties  and  an  oppor- 
tunity to  be  heard  upon  the  motion  for  such  disapproval; 
and  subject,  also,  to  the  filing  and  entering  in  the  district 
court  for  each  district  of  the  circuit  in  which  any  portion  of 
the  property  may  lie  or  be,  within  ten  days  thereafter,  of  a 
duly  certified  copy  of  the  bill  and  of  the  order  of  appoint- 
ment. The  disapproval  of  such  appointment  within  such 
thirty  days,  or  the  failure  to  file  such  certified  copy  of  the 
bill  and  order  of  appointment  within  ten  days,  as  herein  re- 
quired, shall  devest  such  receiver  of  jurisdiction  over  all 
such  property  except  that  portion  thereof  lying  or  being 
within  the  state  in  which  the  suit  is  brought.  In  any  case 
coming  within  the  provisions  of  this  section,  in  which  a  re- 
ceiver shall  be  appointed,  process  may  issue  and  be  executed 
within  any  district  of  the  circuit  in  the  same  manner  and  to 
the  same  extent  as  if  the  property  were  wholly  within  the 
same  district;  but  orders  affecting  such  property  shall 'be 
entered  of  record  in  each  district  in  which  the  property  af- 
fected may  lie  or  be." 

§  168.  Transfer  to  Another  Division  on  Stipulation. 

§  58,  Judicial  Code*  36  Stat.  at  L.  1103,  Com  p.  St.  1911, 
152,  1912  Supp.  F.  8.  A.  v.  1,  p.  156.  "Any  civil  cause,  at 
law  or  in  equity,  may,  on  written  stipulation  of  the  parties 
or  of  their  attorneys  of  record  signe'd  and  filed  with  the 
papers  in  the  case,  in  vacation  or  in  term,  and  on  the  written 
order  of  the  judge  signed  and  filed  in  the  case  in  vacation 
or  on  the  order  of  the  court  duly  entered  of  record  in  term,, 
be  transferred  to  the  court  of  any  other  division  of  the  same 
district,  without  regard  to  the  residence  of  the  defendants, 
for  trial.  When  a  cause  shall  be  ordered  to  be  transferred 
to  a  court  in  any  other  division,  it  shall  be  the  duty  of  the 
clerk  of  the  court  from  which  the  transfer  is  made  to  care- 
fully transmit  to  the  clerk  of  the  court  to  which  the  transfer 
is  made  the  entire  file  of  papers  in  the  cause  and  all  docu- 
ments and  deposits  in  his  court  pertaining  thereto,  together 

h  Drawn  from  24  Stat.  at  L.  425,  4  F.  S,  A.  647 ;  34  Stat.  at  L.  206,  1909 
Supp.  F.  S.  A.  301. 


§    169  VENUE    OF    ACTIONS    IN    THE    DISTRICT    COURT  93 

with  a  certified  transcript  of  the  record  of  all  orders,  inter- 
locutory decrees,  or  other  entries  in  the  cause;  and  he  shall 
certify,  imder  the  seal  of  the  court,  that  the  papers  sent  are 
all  which  are  on  file  in  said  court  belonging  to  the  cause; 
for  the  performance  of  which  duties  said  clerk  so  transmit- 
ting and  certifying  shall  receive  the  same  fees  as  are  now 
allowed  by  law  for  similar  services,  to  be  taxed  in  the  bill  of 
costs,  and  regularly  collected  with  the  other  costs  in  the 
cause;  and  such  transcript,  when  so  certified  and  received, 
shall  henceforth  constitute  a  part  of  the  record  of  the  cause 
in  the  court  to  which  the  transfer  shall  be  made.  The  clerk 
receiving  such  transcript  and  original  papers  shall  file  the 
same  and  the  case  shall  then  proceed  to  final  disposition  as 
other  cases  of  a  like  nature." 

§  169.  On  Creation  of  New  District  or  Division  or  Trans- 
fer of  Territory. 

§  59,  Judicial  Code*  36  8 tat.  at  L.  1103,  Comp.  St.  1911, 
p.  153,  1912  Supp.  F.  S.  A.  v.'l,  p.  157.  "Whenever  any 
new  district  or  division  has  been  or  shall  be  established,  or 
any  county  or  territory  has  been  or  shall  be  transferred  from 
one  district  or  division  to  another  district  or  division,  prose- 
cutions for  crimes  and  offenses  committed  within  such  dis- 
trict, division,  county,  or  territory  prior  to  such  transfer, 
shall  be  commenced  and  proceeded  with  the  same  as  if  such 
new  district  or  division  had  not  been  created,  or  such  county 
or  territory  had  not  been  transferred,  unless  the  court,  upon 
the  application  of  the  defendant,  shall  order  the  cause  to  be 
removed  to  the  new  district  or  division  for  trial.  Civil 
actions  pending  at  the  time  of  the  creation  of  any  such  dis- 
trict or  division,  or  the  transfer  of  any  such  county  or  terri- 
tory, and  arising  within  the  district  or  division  so  created  or 
the  county  or  territory  so  transferred,  shall  be  tried  in  the 
district  or  division  as  it  existed  at  the  time  of  the  institution 
of  the  action,  or  in  the  district  or  division  so  created,  or 
to  which  the  county  or  territory  is  or  shall  be  so  transferred, 
as  may  be  agreed  upon  by  the  parties,  or  as  the  court  shall 
direct.  The  transfer  of  such  prosecutions  and  actions  shall 
be  made  in  the  manner  provided  in  the  section  last  pro- 
ceeding." 

*  Drawn  from  a  number  of  acts  creating  new  districts  or  divisions. 


94          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  171 

§  170.  Same — Preservation  and  Enforcement  of  Liens. 

§  60,  Judicial  Code,*  36  Stat.  at  L.  1108,  Comp.  St.  1911, 
p.  153,  1912  Supp.  F.  8.  A.  v.  1,  p.  157.  "The  creation  of  a 
new  district  or  division,  or  the  transfer  of  any  county  or  terri- 
tory from  one  district  or  division  to  another  district  or  divi- 
sion, shall  not  affect  or  devest  any  lien  theretofore  acquired  in 
the  circuit  or  district  court  by  virtue  of  a  decree,  judgment, 
execution,  attachment,  seizure,  or  otherwise,  upon  property 
situated  or  being  within  the  district  or  division  so  created, 
or  the  county  or  territory  so  transferred.  To  enforce  any 
such  lien,  the  clerk  of  the  court  in  which  the  same  is  ac- 
quired, upon  the  request  and  at  the  cost  of  the  party  desir- 
ing the  same,  shall  make  a  true  and  certified  copy  of  the 
record  thereof,  which,  when  so  made  and  certified,  and  filed 
in  the  proper  court  of  the  district  or  division  in  which  such 
property  is  situated  or  shall  be,  after  such  transfer,  shall 
constitute  the  record  of  such  lien  in  such  court,  and  shall 
be  evidence  in  all  courts  and  places  equally  with  the  original 
thereof ;  and  thereafter  like  proceedings  shall  be  had  thereon, 
and  with  the  same  effect,  as  though  the  cause  or  proceeding 
had  been  originally  instituted  in  such  court.  The  provisions 
of  this  section  shall  apply  not  only  in  all  cases  where  a  dis- 
trict or  division  is  created,  or  a  county  or  any  territory  is 
transferred  by  this  or  any  future  act,  but  also  in  all  cases 
where  a  district  or  division  has  been  created,  or  a  county  or 
any  territory  has  been  transferred  by  any  law  heretofore 
enacted." 

§  171.  Infringement  of  Letters  Patent. 

§  48,  Judicial  Code*  36  Stat.  at  L.  1100,  Comp.  St.  1911, 
p.  149,  1912  Supp.  F.  S.  A.  v.  1,  p.  153.  "In  suits  brought 
for  the  infringement  of  letters  patent  the  district  courts  of 
the  United  States  shall  have  jurisdiction,  in  law  or  in  equity, 
in  the  district  of  which  the  defendant  is  an  inhabitant,  or 
in  any  district  in  which  the  defendant,  whether  a  person, 
partnership,  or  corporation,  shall  have  committed  acts  of  in- 
fringement and  have  a  regular  and  established  place  of  busi- 

J  Embracing  24  Stat.  at  L.  309,  Foster's  Fed.  Prac.  (4th  ed.)  p.  234,  4 
F.  S.  A.  20,  and  31  Stat,  at  L.  881.  4  F.  S.  A;  654. 

k  Re-enacting  29  Stat.  at  L.  695,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  200.  210, 
710,  Comp.  St.  1901,  p.  588.  5  F.  S.  A.  566,  which  statute  is  repealed  by  §  297, 
Judicial  Code.  For  jurisdiction,  see  Consolidated  Rubber  Tire  Co.  et  al.  v. 
Republic  Rubber  Co.  195  Fed.  768;  note  to  Bailey  v.  Mosher,  63  Fed.  488,  11 
C.  C.  A.  313;  Smith  v.  Farbenfabriken  of  Elberfe'ld  Co.  203  Fed.  476. 


§    174  VENUE    OF    ACTIONS    IN    THE    DISTRICT    COURT  95 

ness.  If  such  suit  is  brought  in  a  district  of  which  the  de- 
fendant is  not  an  inhabitant,  but  in  which  such  defendant 
has  a  regular  and  established  place  of  business,  service  of 
process,  summons,  or  subpoena  upon  the  defendant  may  be 
made  by  service  upon  the  agent  or  agents  engaged  in  con- 
ducting such  business  in  the  district  in  which  suit  is  brought." 

§  172.  To  Enjoin  Comptroller  of  Currency. 

§  49 1  Judicial  Code,1  36  Slot,  at  L.  1100,  Comp.  St.  1911, 
p.  149,  1912  Supp.  F.  S.  A.  -v.  1,  p.  153.  "All  proceedings 
by  any  national  banking  association  to  enjoin  the  Comptroller 
of  the  Currency,  under  the  provisions  of  any  law  relating 
to  national  banking  associations,  shall  be  had  in  the  district 
where  such  association  is  located." 

§  173.  Part  of  Several  Defendants  Not  Found. 

§  50,  Judicial  Code,™  36  Stat.  at  L.  1101,  Comp.  St.  1911, 
p.  149, 1912  Supp.  F.  S.  A.  v.  1,  p.  153.  "When  there  are  sev- 
eral defendants  in  any  suit  at  law  or  in  equity,  and  one  or 
more  of  them  are  neither  inhabitants  of  nor  found  within  the 
district  in  which  the  suit  is  brought,  and  do  not  voluntarily  ap- 
pear, the  court  may  entertain  jurisdiction,  and  proceed  to  the 
trial  and  adjudication  of  the  suit  between  the  parties  who 
are  properly  before  it ;  but  the  judgment  or  decree  rendered 
therein  shall  not  conclude  or  prejudice  other  parties  not  regu- 
larly served  with  process  nor  voluntarily  appearing  to  an- 
swer; and  nonjoinder  of  parties  who  are  not  inhabitants  of 
nor  found  within  the  district,  as  aforesaid,  shall  not  consti- 
tute matter  of  abatement  or  objection  to  the  suit." 

§  174.  Crimes  and  Offenses. 

Capital  offenses. 

§  40,  Judicial  Code,"  36  Stat.  at  L.  1100,  Comp.  St.  1911, 
p.  148,  1912  Supp.  F.  S.  A.  v.  1,  p.  151.  "The  trial  of  of- 

1  Re-enacting  §  736,  R.  S.  U.  S.,  Comp.  St.  1901,  p.  586,  5  F.  S.  A.  197,  which 
flection  is  repealed  by  §  297,  Judicial  Code. 

m  Re-enacting  §  737,  R.  S.,  Rose's  Code,  §  817,  Foster's  Fed.  Prac.  (4th  ed.) 
p.  326,  Comp.  St.  1901,  p.  587,  4  F.  S.  A.  552,  which  section  is  repealed  by 
§  297,  Judicial  Code.  In  general,  Waterman  v.  Canal-Louisiana  Bank  Co. 
215  U.  S.  33,  54  L.  ed.  80,  30  Sup.  Ct.  Rep.  10,  and  other  cases  cited  in  notes 
4  F.  S.  A.  pp.  552-4. 

n  Re-enacting  §  729,  R.  S.,  Rose's  Code,  §  427,  Foster's  Fed.  Prac.  (4th 
ed.)  pp.  210,  1430,  Comp.  St.  1901,  p.  585,  2  F.  S.  A.  354,  which  section  is  re- 


96  MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  174 

fenses  punishable  with  death  shall  be  had  in  the  county 
where  the  offense  was  committed,  where  that  can  be  done 
without  great  inconvenience." 

Committed  outside  state  jurisdiction. 

§  41f  Judicial  Code,0  36  Stat.  at  L.  1100,  Comp.  St.  1911, 
p.  148,  1912  Supp.  F.  S.  A.  v.  1,  p.  151.  "The  trial  of  all 
offenses  committed  upon  the  high  seas,  or  elsewhere  out  of 
the  jurisdiction  of  any  particular  state  or  district,  shall  be 
in  the  district  where  the  offender  is  found,  or  into  which  he 
is  first  brought." 

Committed  in  two  districts. 

§  42,  Judicial  Code,9  36  Stat.  at  L.  1100,  Comp.  St.  1911, 
p.  148,  1912  Supp.  F.  S.  A.  v.  1,  p.  151.  "When  any  of- 
fense against  the  United  States  is  begun  in  one  judicial  dis- 
trict and  completed  in  another,  it  shall  be  deemed  to  have 
been  committed  in  either,  and  may  be  dealt  with,  inquired 
of,  tried,  determined,  and  punished  in  either  district,  in  the 
same  manner  as  if  it  had  been  actually  and  wholly  com- 
mitted therein." 

Sale  of  arms  and  intoxicants  in  Pacific  islands  deemed  on 
high  seas. 

§  309,  Penal  Code,  Comp.  St.  1911,  p.  1680,  1909  Supp. 
F.  S.  A.  p.  490.  "All  offenses  against  the  provisions  of  the 
section  last  preceding,  committed  on  any  of  said  islands  or 
on  the  waters,  rocks,  or  keys  adjacent  thereto,  shall  be  deemed 
committed  on  the  high  seas  on  board  a  merchant  ship  or 
vessel  belonging  to  the  United  States,  and  the  courts  of  the 
United  States  shall  have  jurisdiction  accordingly." 

"Vessel  defined. 

§  810,  Penal  Code,  Comp.  St.  1911,  p.  1680,  1909  Supp. 
F.  S.  A.  p.  490.  "The  words,  Vessel  of  the  United  States,' 

pealed  by  §  297,  Judicial  Code.  In  general,  Hendrix  v.  United  States,  219 
U.  S.  79,  55  L.  ed.  102,  31  Sup.  Ct.  Rep.  193. 

o  Re-enacting  §  730,  R.  S.,  Rose's  Code,  §  428.  Foster's  Fed.  Prac.  (4th 
ed.)  p.  1428,  Comp.  St.  1901,  p.  585,  2  F.  S.  A.  345,  which  section  is  repealed  by 
§  297,  Judicial  Code. 

As  to  definition  of  "high  seas,"  and  jurisdiction  on  the  high  seas,  see  United 
States  v.  Rodgers,  350  U.  S.  249.  37  L.  ed.  1071,  14  Sup.  Ct.  Rep.  109. 

P  Re-enacting   §   731,   R.   S.,   Rose's   Code,   §   430,   Comp.   St.    1901,   p.   585, 


§    176  VENUE    OF    ACTIONS    IN    THE    DISTRICT    COURT  97 

wherever  they  occur  in  this  chapter,  shall  be  construed  to, 
mean  a  vessel  belonging  in  whole  or  in  part  to  the  United 
States,  or  any  citizen  thereof,  or  any  corporation  created  by 
or  under  the  laws  of  the  United  States,  or  of  any  state,  terri- 
tory, or  district  thereof." 

§  175.  Penalties  and  Forfeitures. 

Pecuniary  penalties  and  forfeitures. 

§  48,  Judicial  Code*  36  Stat.  at  L.  1100,  Comp.  8t.  1911, 
p.  148,  1912  Supp.  F.  S.  A.  v.  1,  p.  152.  "All  pecuniary 
penalties  and  forfeitures  may  be  sued  for  and  recovered 
either  in  the  district  where  they  accrue  or  in  the  district 
where  the  offender  is  found." 

Seizures  made  on  high  seas  for  forfeitures. 

§  45,  Judicial  Code*  36  Stat.  at  L.  1100,  Comp.  St.  1911, 
p.  148,  1912  Supp.  F.  S.  A.  v.  1,  p.  152.  "Proceedings  on 
seizures  made  on  the  high  seas  for  forfeiture  under  any  law  of 
the  United  States,  may  be  prosecuted  in  any  district  into 
which  the  property  so  seized  is  brought  and  proceedings  insti- 
tuted. Proceedings  on  such  seizures  made  within  any  district 
shall  be  prosecuted  in  the  district  where  the  seizure  is  made, 
except  in  cases  where  it  is  otherwise  provided." 

§  176.  Taxes  and  Internal  Revenue. 

§  44,  Judicial  Code,m  36  Stat.  at  L.  1100,  Comp.  St.  1911, 
p.  148,  1912  Supp.  F.  S.  A.  v.  1,  p.  152.  "Taxes  accruing 
under  any  law  providing  internal  revenue  may  be  sued  for 
and  recovered  either  in  the  district  where  the  liability  for 
such  tax  occurs  or  in  the  district  where  the  delinquent  re- 
sides." 

2  F.  S.  A.  347,  which  section  is  repealed  by  §  297,  Judicial  Code.     In  general, 
Hyde  &  Schneider  v.  United  States,  225  U.  S.  347,  56  L.  ed.  1114,  32  Sup.  Cfc. 
Rep.  793. 

«i  Re-enacting   §    732,  R.   S.,   Rose's   Code,    §    421,   Comp.   St.    1901,   p.   585, 

3  F.  S.  A.  95,  which  section  is  repealed  by  §  297,  Judicial  Code.     In  general, 
Lee  v.  United  States,  150  U.  S.  476,  37  L.  ed.  1150,  14  Sup.  Ct.  Rep.  163. 

'  Re-enacting   §    734,    R.    S.,    Rose's    Code   §    422,   Comp.   St.    1901,   p.    586, 
3  F.  S.  A.  95,  which  section  is  repealed  by  §  2^)7,  Judicial  Code. 

*  Re-enacting   §   733,   R.   S.,   Rose's   Code,    §    420,   Comp.   St.   1901,    p.   586, 
3  F.  S.  A.  595,  which  section  is  repealed  by  §  297,  Judicial  Code.     In  general, 
Taylor  v.  Holmes  and  others,  14  Fed.  498. 
Montg. — 7. 


98          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  170 

§  177.  Condemnation  Insurrectionary  Property. 

§  46,  Judicial  Code?  36  Stat.  at  L.  1100,  Comp.  St.  2911, 
p.  148,  1912  Supp.  F.  8.  A.  v.  1,  p.  152.  "Proceedings  for 
the  condemnation  of  any  property  captured,  whether  on  the 
high  seas  or  elsewhere  out  of  the  limits  of  any  judicial  dis- 
trict, or  within  any  district,  on  account  of  its  being  purchased 
or  acquired,  sold  or  given,  with  intent  to  use  or  employ  the 
same,  or  to  suffer  it  to  be  used  or  employed,  in  aiding,  abet- 
ting, or  promoting  any  insurrection  against  the  government 
of  the  United  States,  or  knowingly 'so  used  or  employed  by 
the  owner  thereof,  or  with  his  consent,  may  be  prosecuted 
in  any  district  where  the  same  may  be  seized,  or  into  which 
it  may  be  taken  and  proceedings  first  instituted." 

§  178.  Seizures  for  Forfeiture — Embargo  or  Insurrection. 
§  47,  Judicial  Code™  36  Stat.  at  L.  1100,  Comp.  St.  1911, 
p.  149,  1912  Supp.  F.  S.  A.  v.  1,  p.  152.  "Proceedings  on 
seizures  for  forfeiture  of  any  vessel  or  cargo  entering  any  port 
of  entry  which  has  been  closed  by  the  President  in  pursuance 
of  law,  or  of  goods  and  chattels  coming  from  a  state  or  section 
declared  by  proclamation  of  the  President  to  be  in  insurrec- 
tion into  other  parts  of  the  United  States,  or  of  any  vessel 
or  vehicle  conveying  such  property,  or  conveying  persons  to  or 
from  such  state  or  section,  or  of  any  vessel  belonging,  in  whole 
or  in  part,  to  any  inhabitant  of  such  state  or  section,  may  be 
prosecuted  in  any  district  into  which  the  property  so  seized 
may  be  taken  and  proceedings  instituted ;  and  the  district 
court  thereof  shall  have  as  full  jurisdiction  over  such  proceed- 
ings as  if  the  seizure  was  made  in  the  district." 

§  1 79.  Prosecutions  for  Failure  to  File  Tariffs,  Giving  Re- 
bates, etc. 

§  1,  Act  Feb.  19,  1903,  ch.  708,  32  Stat.  at  L.  847,  Comp. 
St.  1911,  p.  1310,  10  F.  S.  A.  171.  "Every  violation  of 
this  section  shall  be  prosecuted  in  any  court  of  the  United 
States  having  jurisdiction  of  crimes  within  the  district  in 
which  such  violation  was  committed,  or  through  which  the 
transportation  may  have  been  conducted ;  and  whenever  the 
offense  is  begun  in  one  jurisdiction  and  completed  in  another 

*  Re-enacting  §  735,  R.  S.,  Comp.  St.  1901,  p.  586,  6  F.  S.  A.  70,  which 
section  is  repealed  by  §  297,  Judicial  Code. 

« Re-enacting  §  564,  R.  S.,  Rose's  Code,  §  423,  Comp.  St.  1901,  p.  460, 
C  F.  S.  A.  236,  which  section  is  repealed  by  §  297,  Judicial  Code. 


§    181  VE3ST1JE    OF    ACTIONS    IN    THE    DISTRICT    COURT  99 

it  may  te  dealt  with,  inquired  of,  tried,  determined,  and 
punished  in  either  jurisdiction  in  the  same  manner  as  if  the 

offense  had  been  actually  and  wholly  committed  therein." 

•>.  i 

§  180,  Venue  of  Suits  Affecting  Orders  of  Interstate  Com- 
merce Commission. 

Ft.  Act  October  22, 1913,  ch.  32,  38  Stat.  at  L.  219.  "The 
venue  of  any  suit  hereafter  brought  to  enforce,  suspend,  or 
set  aside,  in  whole  or  in  part,  any  order  of  the  Interstate 
Commerce  Commission,  shall  be  in  the  judicial  district 
wherein  is  the  residence  of  the  party  or  any  of  the  parties 
upon  whose  petition  the  order  was  made,  except  that  where 
the  order  does  not  relate  to  transportation,  or  is  not  made 
upon  the  petition  of  any  party,  the  venue  shall  be  in  the  dis- 
trict where  the  matter  complained  of  in  the  petition  before 
the  Commission  arises,  and  except  that  where  the  order  does 
not  relate  to  either  transportation  or  to  a  matter  so  com- 
plained of  before  the  Commission  the  matter  covered  by  the 
order  shall  be  deemed  to  arise  in  the  district  where  one  of  the 
petitioners  in  court  has  either  its  principal  office  or  its  prin- 
cipal operating  office.  In  case  such  transportation  relates  to 
a  through  shipment,  the  term  'destination'  shall  be  construed 
as  meaning  the  final  destination  of  such  shipment." 

For  payment  of  money. 

PL  §  16,  Interstate  Commerce  Act  1912,  Supp.  F.  8.  A. 
v.  1,  p.  123.  Suits  to  enforce  payment  of  money  may  be 
brought  in  the  district  court  "for  the  district  in  which  he 
resides  or  in  which  is  located  the  principal  operating  office 
of  the  carrier,  or  through  which  the  road  of  the  carrier  runs, 
or  in  any  state  court  of  general  jurisdiction  having  jurisdic- 
tion of  the  parties." 

§  181.  Issue  of  Venue — How  Raised.  Objections  as  to  the 
venue  of  actions  must  be  raised  at  the  earliest  possible  moment, 
as  this  is  a  personal  privilege,  and  may  be  waived  by  the  de- 
fendant's failure  to  seasonably  object. 

In  cases  of  removal  the  question  of  venue  may  be  important 
in  determining  whether  or  not  the  suit  was  one  of  which  the  dis- 
trict court  had  original  jurisdiction.  But  the  defect  will  be 
waived  if  not  put  in  issue  by  the  plaintiff  in  his  motion  to  remand. 


100         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  181 

The  filing  of  petition  and  bond  for  removal  is  a  waiver  by  the 
defendant.  The  issue  should  be  raised  in  the  motion  to  remand. 

If  a  suit  is  originally  brought  in  the  Federal  court  and  it  is 
not  brought  in  the  district  of  which  the  defendant  is  an  inhabitant 
(except  in  the  special  cases  heretofore  indicated),  or  if,  in  case 
of  diversity  of  citizenship,  the  suit  is  not  brought  in  the  residence 
district  of  the  plaintiff  or  defendant,  the  issue  as  to  venue  would 
be  raised  in  a  suit  in  equity  under  Rule  29  by  motion  to  dismiss, 
if  apparent  on  the  face  of  the  record,  or  in  the  answer  and  sep- 
arately heard,  if  the  defect  is  not  apparent  on  the  face  of  the 
record. 

In  a  suit  at  law  the  issue  would  be  raised  in  that  form  of  plead- 
ing used  to  raise  jurisdictional  questions  in  the  state  court  of 
record  of  the  state  wherein  the  district  is  situated.  Generally  the 
pleading  would  be  a  demurrer  for  defects  apparent  on  the  face 
of  the  record,  and  a  plea  or  answer  where  not  apparent  on  the 
face  of  the  record. 

If  a  motion  to  dismiss  is  filed,  the  following  form  is  suggested : 


"IN  THE  DISTRICT  COURT  OF  THE  UNITED  STATES  FOR  THE 
DISTRICT  OF , DIVISION. 


John   Doe, 
j.     Plaintiff, 


-vs.- 


II i chard    Roe, 
Defendant. 


.MOTION  TO  DISMISS 


Now  comes  the  defendant  in  the  above-entitled  action  and  moves  the  court 
to  dismiss  same  on  the  ground  that,  as  appears  on  the  face  of  the  bill,  at  the 
commencement  of  this  action  he  was  not,  and  is  not  now,  an  inhabitant  of  nor 

residing  in  the district  of ,  where  this  suit  ia  brought, 

but  that  at  the  commencement  of  this  action  and  now,  he  was  and  is  an  in- 
habitant of  and  resides   in    County  which   is   in   the 

District  of  the  State  of   and  not  the  district  where  this  suit  ia 

brought. 


Solicitor." 


If  the  objection  be  that  he  is  not  sued  in  the  proper  division 
of  the  district,  the  word  "division"  may  be  substituted  for  district 
in  the  above  form. 


§    181  VENUE    OF    ACTIONS    IN    THE    DISTRICT    COUKT  101 

In  case  of  a  corporation,  the  allegation  may  be: 

"That  it  is  not  an  inhabitant  of  or  residing  in  the  County  of 

,  District  of  ,  but  is  an  inhabitant  of  and  residing  in 

County  in  the  District  of  ,  where  its  prin- 
cipal office  or  headquarters  are  situated,  its  corporate  meetings  held  and  its 
corporate  business  transacted." 

"IN  THE  DISTRICT  COURT  OF  THE  UNITED  STATES  IN  THE 
DISTRICT    OF   , DIVISION. 

John    Doe,  1 

Plaintiff,  I 

— vs—  J.ANSWER 

Richard   Roe,        I 
Defendant.  I 

Defendant   answering   plaintiff's   complaint,   alleges: 

As  a  separate  defense,  denies 'that  plaintiff  at  the  commencement  of  this 

suit  was  or  is  now,  an  inhabitant  of  or  resident  of  the  Division 

of  where  this  suit  is  brought,  but  alleges  that  at  the  com- 
mencement of  the  suit  he  was  and  now  is  an  inhabitant  of  and 

resides  in County,  which  is  in  the  District  of  the 

State  of  ,  and,  therefore,  this  action  is  not  properly  within  the 

jurisdiction  of  this  court.  .  .  .  ." 


CHAPTER  6. 

DISTRICT   COURT— JURISDICTION,  ORIGINAL  AND   APPELLATE. 

Sec. 

190.  In  General. 

191.  District  Court — Jurisdiction  Exclusive  of  State  Courts. 

192.  Exclusive  Jurisdiction. 

193.  District  Court— Jurisdiction  Concurrent  with  That  of  State  Courts. 

194.  Original  Jurisdiction. 

195.  Jurisdiction  by  Assignment. 

196.  Agriculture. 

197.  Alien  Enemies. 

198.  Same— Duties  of  Marshal. 

199.  Customs  Duties. 

200.  Rivers,  Harbors,  and  Canals — Actions  to  Remove  Obstructions. 

201.  White  Slave  Traffic. 

202.  Appellate  Jurisdiction   Chinese  Exclusion  Laws. 

203.  Appellate  Jurisdiction  Yellowstone  National  Park. 

204.  Jurisdiction  of  Crimes  on  Indian  Reservations  South  Dakota. 

205.  Power  to  Enforce  Foreign  Consular  Awards. 

206.  Powers  of  Foreign  Consuls  over  Disputes  between  Seamen. 

207.  Arrest  of  Seamen  on  Application  of  Consul. 

208.  Commitment  and  Discharge. 

209.  Jurisdiction  in  Cases  Transferred  from  Territorial  Courts. 

210.  Jurisdiction  under  Reclamation  Act. 

211.  Jurisdiction  under  Income  Tax  Law. 

212.  Jurisdiction  in  Arbitration  of  Disputes  between  Common  Carriers  and 

Employees. 


§  190.  In  General.  The  original  jurisdiction  of  the  Federal 
district  court  is  set  out  in  §  24,  Judicial  Code,1  part  of  which 
is  made  exclusive  by  §  256,  Judicial  Code,2  and  part  by  other 
provisions,8  the  remainder  being  concurrent  with  that  of  state 
courts  of  record  in  the  various  states.4 

Under  §  24,  the  jurisdiction  of  the  district  courts  is  limited 
to  cases  involving  a  Federal  question  6  or  diverse  citizenship,6  also 

l§  194,  infra.          «§  192,  infra.          3§  191,  mfra.          4§  193,  infra. 
6  Ch.  7,  post.  «  Ch.  8,  post. 

102 


§    190  DISTRICT    COURT JURISDICTION  103 

with  respect  to  the  amount  in  controversy  7  and  the  denial  of  the 
right  of  certain  assignees  to  sue  unless  their  assignors  could  have 
brought  the  suits  in  the  Federal  courts.8 

Considerable  volume  of  business  comes  into  the  Federal  district 
courts  through  its  jurisdiction  on  removal  of  cases  from  the  state 
courts.  This  jurisdiction  on  removal  under  §§  28  et  seq.,  Judicial 
Code,  is  limited  to  those  cases  of  concurrent  jurisdiction  of  which 
the  district  court  has  original  jurisdiction.  This  subject  is  treated 
in  a  separate  chapter,  chapter  10,  entitled,  "Removal  of  Causes 
— Jurisdiction  and  Procedure." 

Under  special  provisions  of  the  Federal  statutes  giving  juris- 
diction to  the  United  States  courts,  several  include  the  United 
States  district  court. 

The  United  States  district  court  has  jurisdiction  of  various 
matters  under  the  titles,  "Agriculture," 9  "Alien  Enemies,"  10 
"Customs  Duties,"  "  "Rivers,  Harbors,  and  Canals,"  12  and  "White 
Slave  Traffic,"  13  "Income  Tax  Law,"  13a  "Arbitration  Disputes 
Common  Carriers  and  Employees,"  13b  "Reclamation  Act,"  13°  and 
others. 

The  appellate  jurisdiction  of  the  district  court  is  given  by 
the  Chinese  exclusion  laws,  §  25,  Judicial  Code,14  over  Yellow- 
stone National  Park  by  §  26,  Judicial  Code;15  over  crimes  in 
Indian  Reservation  in  South  Dakota  by  §  27,  Judicial  Code.16 

The  district  courts  are  given  power  to  enforce  awards  of  foreign 
consuls  by  §  271,  Judicial  Code.17 

In  this  connection  we  set  out  the  powers  of  foreign  consuls 
under  §§  4079-4080-4081,  R.  S.18 

By  §  64,  Judicial  Code,  the  district  court  is  given  jurisdiction 
of  cases  transferred  from  territorial  courts.19 

The  grounds  of  Federal  jurisdiction  are  treated  separately  as 
above  suggested  in  chapters  7  and  8,  entitled  respectively,  "Federal 
Question — Ground  of  Jurisdiction," — "Diverse  Citizenship — 
Ground  of  Jurisdiction." 

7Ch.  9,  post.  8§   195,   infra.         »§   196,   infra.         10  §§   197-8,  infra. 

11  §   199,  infra.  12  §  200,  infra.           13  §  201.  infra.          I3a  §    211,   infra. 

I3b  §  212,  infra.  13c  §  210,   infra.       l*  §  202,  infra.          15  §  203,  infra. 

16  §  204.  infra.  17  §  205,  infra.          18  §§  206-207-208,  infra. 
19  §  210,  infra. 


104        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  192 

Chapter  9  treats  of  "Amount  in  Controversy  as  Affecting  Juris- 
diction." Chapter  5  treats  of  "Venue  of  Actions  in  the  District 
Court — Territorial  Jurisdiction,"  while  chapter  4  gives  the  bound- 
aries of  the  judicial  districts  and  divisions,  the  times  and  places 
of  holding  court. 

§  191.  District  Court — Jurisdiction  Exclusive  of  State 
Courts.  The  district  court's  exclusive  jurisdiction  extends  over 
those  matters  peculiarly  within  the  scope  of  national  control,  such 
as  cases  against  consuls  and  vice  consuls,20  admiralty  and  maritime 
causes,21  seizures  and  prizes,22  patents  and  copyrights,23  penalties 
and  forfeitures  under  the  Federal  laws,24  crimes  and  offenses  of 
Federal  cognizance,25  and  also  cases  where  Congress  has  legislated 
to  the  exclusion  of  state  control,  as  under  the  bankruptcy  laws.28 
So,  also,  though  not  mentioned  in  §  256,  Judicial  Code,  it  would 
have  jurisdiction,  exclusive  of  the  state  courts,  of  suits  against  the 
United  States,  concurrently  with  the  court  of  claims.27  It  also 
has  jurisdiction  exclusive  of  the  state  courts,  of  suits  for  the  un- 
lawful inclosure  of  public  lands,28  and  against  trusts,  monopolies, 
and  unlawful  combinations.29 

The  amount  involved  is  not  material  in  these  cases  of  exclusive 
jurisdiction.80 

§  24,  Judicial  Code,  is  quoted  §  194,  infra,  and  §  256  is  quoted 
§  192,  infra.  See  also  chapter  12,  entitled,  "Summaries — Origi- 
nal Jurisdiction,  Removal,  Amount,  Venue — For  the  Several  Mat- 
ters of  District  Court  Cognizance." 

§  192.  Exclusive  Jurisdiction. 

§  256,  Judicial  Code*  36  Stat.  at  L.  1160,  Comp.  St. 
1911,  pp.  233,  234,  1912  Supp.  F.  S.  A.  v.  1,  pp.  238-9. 

20Subd.  18th,  §  24,  Judicial  Code,  Subd.  8th,  §  256,  Judicial  Code. 

21  Subd.  3d,  §  24,  Judicial  Code,  Subd.  3d,  §  25(i,  Judicial  Code. 

22  Subd.  3d,  §  24,  Judicial  Code,  Subd.  4th,  §  256,  Judicial  Code. 

23  Subd.  7th,  §  24,  Judicial  Code,  Subd.  5th,  §  256,  Judicial  Code. 

24  Subd.  9th,  §  24,  Judicial  Code,  Subd.  2d,  §  256,  Judicial  Code. 

25  Subd.  2d,  §  24,  Judicial  Code,  Subd.  1st,  §  256,  Judicial  Code. 

26  Subd.  19th,  §  24,  Judicial  Code,  Subd.  6th,  §  256,  Judicial  Code. 

27  Subd.  20th,  §  24,  Judicial  Code,  §  145,  Judicial  Code. 

28  Subd.  21st,  §  24,  Judicial  Code. 

29  Subd.  23d,  §  24,  Judicial  Code,  Loewe  v.  Lawler,  130  Fed.  633. 

30  Last  part  subd.  1,  §  24,  Judicial  Code. 

»  The   general   clause    is   from    §    711,    R.    S.,   Rose's   Code,    §    15,    Foster's 
Fed.  Prac.  (4th  ed.)  p.  2068,  Comp.  St.  1901,  p.  577,  4  F.  S.  A.  493. 


§    103  DISTRICT    COURT JURISDICTION  105 

"The  jurisdiction  vested  in  the  courts  of  the  United  States 
in  the  cases  and  proceedings  hereinafter  mentioned,  shall  be 
exclusive  of  the  courts  of  the  several  states : 

"First.  Of  all  crimes  and  offenses  cognizable  under  the 
authority  of  the  United  States. 

"Second.  Of  all  suits  for  penalties  and  forfeitures  in- 
curred under  the  laws  of  the  United  States. 

"Third.  Of  all  civil  causes  of  admiralty  and  maritime 
jurisdiction ;  saving  to  suitors,  in  all  cases,  the  right  of  a 
common-law  remedy,  where  the  common  law  is  competent 
to  give  it. 

"Fourth.  Of  all  seizures  under  the  laws  of  the  United 
States,  on  land  or  on  waters  not  within  admiralty  and  mari- 
time jurisdiction ;  of  all  prizes  brought  into  the  United 
States ;  and  of  all  proceedings  for  the  condemnation  of  prop- 
erty taken  as  prize. 

"Fifth.  Of  all  cases  arising  under  the  patent-right,  or 
copyright  laws  of  the  United  States. 

"Sixth.     Of  all  matters  and  proceedings  in  bankruptcy. 

"Seventh.  Of  all  controversies  of  a  civil  nature,  where  a 
state  is  a  party,  except  between  a  state  and  its  citizens,  or 
between  a  state  and  citizens  of  other  states,  or  aliens. 

"Eighth.  Of  all  suits  and  proceedings  against  ambassa- 
dors, or  other  public  ministers,  or  their  domestics,  or  domes- 
tic servants,  or  against  consuls  or  vice  consuls." 

§  193.  District  Court — Jurisdiction  Concurrent  with  That 
of  State  Courts.  The  Federal  district  courts  also  have  an  exten- 

Paragraph  one  re-enacts  paragraph  one  of  §  711,  R.  S.,  Comp.  St.  1901,  p. 

577,  4  F.  S.  A.  493. 

Paragraph  two  re-enacts  paragraph  two  of  §  711,  R.  S.,  Comp.  St.  1901, 
p.  577,  4  F.  S.  A.  493. 

Paragraph  three  re-enacts  paragraph  three  of  §  711,  R.  S.,  Comp.  St.  1901, 
p.  577,  4  F.  S.  A.  493. 

Paragraph  four  re-enacts  paragraph  four  of  §  711,  R.  S.,  Comp.  St. 
1901,  p.  577,  4  F.  S.  A.  494;  part  of  paragraph  eight  of  §  563,  R.  S.  U.  S., 
Comp.  St.  1901,  p.  547,  4  F.  S.  A.  220;  part  of  paragraph  six  of  §  629,  Comp. 
St.  1901,  p.  504,  4  F.  S.  A.  247. 

Paragraph  five  re-enacts  paragraph  five  of  §  711,  R.  S.,  Comp.  St.  1901,  p. 

578,  4   F.   S.  A.  494. 

Paragraph  six  re-enacts  paragraph  six  of  §  711,  R.  S.,  Comp.  St.  1901, 
p.  578,  4  F.  S.  A.  497. 

Paragraph  seven  re-enacts  paragraph  seven  of  §  711,  R.  S.,  Comp.  St. 
1901,  p.  578,  4  F.  S.  A.  497. 

Paragraph  eight  re-enacts  paragraph  eight  of  §  711,  R.  S.,  Comp.  St. 
1901,  p.  578,  4  F.  S.  A.  497. 

All  of  these  old  sections  are  repealed  by  §  297,  Judicial  Code. 


106         MONTGOMERY'S  MANUAL  or  FEDERAL  PROCEDURE     §  193 

sive  jurisdiction  which  is  not  exclusive  but  concurrent  with  that 
of  the  state  courts  of  record  in  the  various  states  where  the  sever- 
al districts  lie. 

Cases  where  the  matter  in  controversy  exceeds,  exclusive  of 
interest  and  costs,  the  sum  or  value  of  $3,000,  and  involving 
either  a  Federal  question  or  diverse  citizenship,  may  be  brought 
either  in  the  Federal  district  court  of  the  proper  district,  or  on 
proper  proceedings  may  be  removed  thereto  from  state  court 
wherein  such  district  is  located. 

In  many  cases  under  §  24,  Judicial  Code,  the  amount  in  con- 
troversy is  immaterial.  The  provision  as  to  value  of  the  matter 
in  controversy  is  expressly  stated  in  §  24  not  to  apply  to  the  cases 
already  mentioned  as  coming  under  the  exclusive  jurisdiction  of 
the  Federal  courts,  and  also  not  to  apply  to  suits  under  any  law 
relating  to  slave  trade ;  32  cases  under  internal  revenue,  customs 
and  tonnage  laws ;  33  suits  under  postal  laws ;  84  suits  for  violation 
of  interstate  commerce  laws ;  36  suits  on  debentures  for  drawback 
of  duties;  36  suits  for  injuries  on  account  of  acts  done  under  laws 
of  the  United  States ;  37  suits  concerning  civil  rights ;  38  suits 
against  persons  having  knowledge  of  conspiracy  under  civil  rights 
laws ;  39  suits  to  redress  the  deprivation  under  color  of  law  of  civil 
rights ;  40  suits  to  recover  certain  offices ;  41  suits  involving  national 
banking  association ;  *2  suits  by  aliens  for  torts  ;43  suits  under 
immigration  and  contract  labor  laws ;  **  suits  concerning  allot- 
ment of  lands  to  Indians ;  45  partition  suits  where  United  States 
is  a  joint  tenant.46  In  criminal  prosecutions  under  the  foregoing 
classification  or  suits  for  penalties  and  forfeitures  the  jurisdiction 
would  be  exclusive  of  the  state  courts,  under  §  256,  Judicial  Code, 
subds.  1  and  2.47 

The  amount  or  value  in  controversy  is  also  immaterial 
in  all  suits  in  law  or  in  equity,  brought  by  the  United 
States  or  by  any  officer  thereof  authorized  by  law  to  sue,  or  be- 
tween citizens  of  the  same  state  claiming  lands  under  grants 
from  different  states.48  But  if  in  any  action  commenced  in  a 

32Subd.  4th.  33  Subd.     5th.            34  Subd.  6th.  35  Subd.     8th. 

S6Subd.  10th.  »7  Subd.  llth.            38  Subd.  12th.  39  Subd.  13th. 

40  Subd.  14th.  «  Subd.  15th.            42  Subd.  16th.  43  Subd.  17th. 

44  Subd.  22d.  45  Subd.  24th.            «  Subd.  25th.  47  §  192,  infra. 

48  Subd.  1st,  §  24,  Judicial  Code,  §  194,  infra. 


§    19-i  DISTRICT    COURT JURISDICTION  107 

state  court  the  title  of  land  be  concerned,  and  the  parties  are  citi- 
zens of  the  same  state  claiming  under  land  grants  of  different  states, 
the  matter  in  dispute  must  exceed  $3,000,  exclusive  of  interest 
and  costs,  to  entitle  a  party  to  remove  to  the  Federal  court.49 

§  194.  Original  Jurisdiction. 

§  24,  Judicial  Code*  36  Stat.  at  L.  1091,  Comp.  St. 
1911,  pp.  135-140,  1912  Supp.  F.  8.  A.  v.  1,  pp.  139-142. 
"The  district  courts  shall  have  original  jurisdiction  as  fol- 
lows : — 

"First.  (Where  the  United  States  are  plaintiffs;  and  of 
civil  suits  at  common  law  or  in  equity.)  Of  all  suits  of  a 
civil  nature,  at  common  law  or  in  equity,  brought  by  the 
United  States,  or  by  any  officer  thereof  authorized  by  law  to 
sue,  or  between  citizens  of  the  same  state  claiming  lands 
under  grants  from  different  states;  or  where  the  matter  in 
controversy  exceeds,  exclusive  of  interest  and  costs,  the  sum 
or  value  of  three  thousand  dollars,  and  (a)  arises  under  the 
Constitution  or  laws  of  the  United  States,  or  treaties  made, 
or  which  shall  be  made,  under  their  authority,  or  (b)  is  be- 
tween citizens  of  different  states,  or  (c)  is  between  citizens 
of  a  state  and  foreign  states,  citizens,  or  subjects.  No  dis- 
trict court  shall  have  cognizance  of  any  suit  (except  upon 
foreign  bills  of  exchange)  to  recover  upon  any  promissory 
note  or  other  chose  in  action  in  favor  of  any  assignee,  or  of 
any  subsequent  holder  if  such  instrument  be  payable  to  bear- 
er, and  be  not  made  by  any  corporation,  unless  such  suit 
might  have  been  prosecuted  in  such  court  to  recover  upon 
said  note  or  other  chose  in  action  if  no  assignment  had  been 
made:  Provided,  however,  That  the  foregoing  provision  as 
to  the  sum  or  value  of  the  matter  in  controversy  shall  not  be 
construed  to  apply  to  any  of  the  cases  mentioned  in  the  suc- 
ceeding paragraphs  of  this  section. 

«  §  30,  Judicial  Code,  §  262,  infra. 

b  Drawn  from  §  563,  R.  S.,  Rose's  Code,  §  210,  Foster's  Fed.  Prac.  (4th  ed.) 
pp.  219,  220,  221,  222,  1672,  1678,  Comp.  St.  1901,  p.  455,  4  F.  S.  A.  218.  and 
§  629,  R.  S.,  Comp.  St.  1901,  p.  507,  4  F.  S.  A.  245,  which  are  repealed  by  § 
297,  Judicial  Code. 

Civil  suits  at  law  or  in  equity,  see  Williams  v.  Molther  et  al.  198  Fed.  460, 
117  C.  C.  A.  220.  Amount  in  controversy,  see  notes  to  Tennent-Stribling  Shoe 
Co.  v.  Roper,  94  Fed.  739,  36  C.  C.  A.  459,  and  notes  to  Auer  v.  Lombard,  19 
C.  C.  A.  75;  0.  J.  Lewis  Mercantile  Co.  v.  Klepner,  176  Fed.  343,  100  C.  C.  A. 
288.  See  chapter  9,  post. 

United  States  as  a  party,  see  Heckman  v.  United  States,  224  U.  S.  413, 
56  L.  ed.  820,  32  Sup.  Ct.  Rep.  424. 

Diverse  citizenship,  see  ch.  8,  infra,  notes  10  C.  C.  A.  249,  27  C.  C.  A.  29S. 

District  for  suit,  see  United  States  v.  Congress  Construction  Co.  222  U. 
S.  199,  56  L.  ed.  163,  32  Sup.  Ct.  Rep.  44.  See  chapter  5,  supra. 


108        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  194 

"Second.  (Of  crimes  and  offenses.)  Of  all  crimes  and 
offenses  cognizable  under  the  authority  of  the  United  States. 

"Third.  (Of  admiralty  causes,  seizures,  and  prizes.)  Of 
all  civil  causes  of  admiralty  and  maritime  jurisdiction,  sav- 
ing to  suitors  in  all  cases  the  right  of  a  common-law  remedy 
where  the  common  law  is  competent  to  give  it ;  of  all  seizures 
on  land  or  waters  not  within  admiralty  and  maritime  juris- 
diction; of  all  prizes  brought  into  the  United  States;  and  of 
all  proceedings  for  the  condemnation  of  property  taken  as 
prize. 

"Fourth.  (Of  suits  under  any  law  relating  to  the  slave 
trade.)  Of  all  suits  arising  under  any  law  relating  to  the 
slave  trade. 

"Fifth.  (Of  cases  under  internal  revenue,  customs,  and 
tonnage  laws. )  Of  all  cases  arising  under  any  law  providing 
for  internal  revenue,  or  from  revenue  from  imports  or  ton- 
nage, except  those  cases  arising  under  any  law  providing 
revenue  from  imports,  jurisdiction  of  which  has  been  con- 
ferred upon  the  court  of  customs  appeals. 

"Sixth.  (Of  suits  under  postal  laws.)  Of  all  cases  aris- 
ing under  the  postal  laws. 

"Seventh.  (Of  suits  under  the  patent,  the  copyright,  and 
the  trademark  laws.)  Of  all  suits  at  law  or  in  equity  arising 
under  the  patent,  the  copyright,  and  the  trademark  laws. 

"Eighth.  (Of  suits  for  violation  of  interstate  commerce 
laws.)  Of  all  suits  and  proceedings  arising  under  any  law 
regulating  commerce,  except  those  suits  and  proceedings 
exclusive  jurisdiction  of  which  has  been  conferred  upon  the 
commerce  court.  (Commerce  court  now  abolished  and  juris- 
diction transferred  to  district  court.  See  ch.  9  of  the  Ju- 
dicial Code,  in  our  Appendix.) 

"Xinth.  (Of  penalties  and  forfeitures.)  Of  all  suits 
and  proceedings  for  the  enforcement  of  penalties  and  for- 
feitures incurred  under  any  law  of  the  United  States. 

"Tenth.  (Of  suits  on  debentures.)  Of  all  suits  by  the 
assignee  of  any  debenture  for  drawback  of  duties,  issued 
under  any  law  for  the  collection  of  duties,  against  the  per- 
son to  whom  such  debenture  was  originally  granted,  or  against 
any  indorser  thereof,  to  recover  the  amount  of  such  deben- 
ture. 

"Eleventh.  (Of  suits  for  injuries  on  account  of  acts  done 
under  laws  of  the  United  States.)  Of  all  suits  brought  by  any 
person  to  recover  damages  for  any  injury  to  his  person  or 


194  DISTRICT    COURT JURISDICTION  100 

property  on  account  of  any  act  done  by  him,  under  any  law 
of  the  United  States,  for  the  protection  or  collection  of  any 
of  the  revenues  thereof,  or  to  enforce  the  right  of  citizens  of 
the  United  States  to  vote  in  the  several  states. 

"Twelfth.  (Of  suits  concerning  civil  rights.)  Of  all 
suits  authorized  by  law  to  be  brought  by  any  person  for  the 
recovery  of  damages  on  account  of  any  injury  to  his  person 
or  property,  or  of  the  deprivation  of  any  right  or  privilege 
of  a  citizen  of  the  United  States,  by  any  act  done  in  further- 
ance of  any  conspiracy  mentioned  in  section  nineteen  hun- 
dred and  eighty,  Revised  Statutes. 

"Thirteenth.  (Of  suits  against  persons  having  knowledge 
of  conspiracy,  etc.)  Of  all  suits  authorized  by  law  to  be 
brought  against  any  person  who,  having  knowledge  that  any 
of  the  wrongs  mentioned  in  section  nineteen  hundred  and 
eighty,  Revised  Statutes,  are  about  to.be  done,  and  having 
power  to  prevent  or  aid  in  preventing  the  same,  neglects  or 
refuses  so  to  do,  to  recover  damages  for  any  such  wrongful 
act. 

"Fourteenth.  (Of  suits  to  redress  the  deprivation,  under 
color  of  law,  of  civil  rights.)  Of  all  suits  at  law  or  in  equity 
authorized  by  law  to  be  brought  by  any  person  to  redress 
the  deprivation,  under  color  of  any  law,  statute,  ordinance, 
regulation,  custom,  or  usage  of  any  state,  of  any  right,  privi- 
lege, or  immunity,  secured  by  the  Constitution  of  the  United 
States,  or  of  any  right  secured  by  any  law  of  the  United 
States  providing  for  equal  rights  of  citizens  of  the  United 
States,  or  of  all  persons  within  the  jurisdiction  of  the  United 
States. 

"Fifteenth.  (Of  suits  to  recover  certain  offices.)  Of  all 
suits  to  recover  possession  of  any  office,  except  that  of  elector 
of  President  or  Vice  President,  Representative  in  or  dele- 
gate to  Congress,  or  member  of  a  state  legislature,  author- 
ized by  law  to  be  brought,  wherein  it  appears  that  the  sole 
question  touching  the  title  to  such  office  arises  out  of  the 
denial  of  the  right  to  vote  to  any  citizen  offering  to  vote,  on 
account  of  race,  color,  or  previous  condition  of  servitude: 
Provided)  That  such  jurisdiction  shall  extend  only  so  far  as 
to  determine  the  rights  of  the  parties  to  such  office  by  reason 
of  the  denial  of  the  right  guaranteed  by  the  Constitution  of 
the  United  States,  and  secured  by  any  law,  to  enforce  the 
right  of  citizens  of  the  United  States  to  vote  in  all  the  states. 

"Sixteenth.  (Of  suits  against  national  banking  associa- 
tions.) Of  all  cases  commenced  by  the  United  States,  or  by 


110        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  194 

direction  of  any  officer  thereof,  against  any  national  bank- 
ing association,  and  cases  for  winding  up  the  affairs  of  any 
such  bank ;  and  of  all  suits  brought  by  any  banking  associa- 
tion established  in  the  district  for  which  the  court  is  held, 
under  the  provisions  of  title,  "National  Banks,"  Revised 
Statutes,  to  enjoin  the  Comptroller  of  the  Currency,  or  any 
receiver  acting  under  his  direction,  as  provided  by  said  title. 
And  all  national  banking  associations  established  under  the 
laws  of  the  United  States  shall,  for  the  purpose  of  all  other 
actions  by  or  against  them,  real,  personal,  or  mixed,  and  all 
suits  in  equity,  be  deemed  citizens  of  the  states  in  which 
they  are  respectively  located. 

"Seventeenth.  (Of  suits  by  aliens  for  torts.)  Of  all 
suits  brought  by  any  alien  for  a  tort  only,  in  violation  of 
the  laws  of  nations  or  of  a  treaty  of  the  United  States. 

"Eighteenth.  (Of  suits  against  consuls  and  vice  consuls.) 
Of  all  suits  against  consuls  and  vice  consuls. 

"Nineteenth.  (Of  suits  and  proceedings  in  bankruptcy.) 
Of  all  matters  and  proceedings  in  bankruptcy. 

"Twentieth.  (Of  suits  against  the  United  States.)  Con- 
current with  the  court  of  claims,  of  all  claims  not  exceeding 
ten  thousand  dollars  founded  upon  the  Constitution  of  the 
United  States  or  any  law  of  Congress,  or  upon  any  regula- 
tion of  an  Executive  Department,  or  upon  any  contract,  ex- 
press or  implied,  with  the  government  of  the  United  States, 
or  for  damages,  liquidated  or  unliquidated,  in  cases  not  sound- 
ing in  tort,  in  respect  to  which  claims  the  party  would  be 
entitled  to  redress  against  the  United  States,  either  in  a 
court  of  law,  equity,  or  admiralty,  if  the  United  States  were 
suable,  and  of  all  set-offs,  counterclaims,  claims  for  damages, 
whether  liquidated  or  unliquidated,  or  other  demands  what- 
soever on  the  part  of  the  government  of  the  United  States 
against  any  claimant  against  the  government  in  said  court: 
Provided,  however,  That  nothing  in  this  paragraph  shall  be 
construed  as  giving  to  either  the  district  courts  or  the  court 
of  claims  jurisdiction  to  hear  and  determine  claims  growing 
out  of  the  late  Civil  War,  and  commonly  known  as  "war 
claims,"  or  to  hear  and  determine  other  claims  which  had 
been  rejected  or  reported  on  adversely  prior  to  the  third 
day  of  March,  eighteen  hundred  and  eighty-seven,  by  any 
court,  department,  or  commission  authorized  to  hear  and  de- 
termine the  same,  or  to  hear  and  determine  claims  for  pen- 
sions ;  or  as  giving  to  the  district  courts  jurisdiction  of  cases 
brought  to  recover  fees,  salary,  or  compensation  for  official 


194:  DISTJUCT    COUET J  L'KISDICTION  111 

services  of  officers  of  the  United  States  or  brought  for  such 
purpose  by  persons  claiming  as  such  officers  or  as  assignees 
or  legal  representatives  thereof;  but  no  suit  pending  on  the 
twenty-seventh  day  of  June,  eighteen  hundred  and  ninety- 
eight,  shall  abate  or  be  affected  by  this  provision:  And  pro- 
vided, further,  That  no  suit  against  the  government  of  the 
United  States  shall  be  allowed  under  this  paragraph  unless 
the  same  shall  have  been  brought  within  six  years  after  the 
right  accrued  for  which  the  claim  is  made:  Provided,  That 
the  claims  of  married  women  first  accrued  during  marriage, 
of  persons  under  the  age  of  twenty-one  years,  first  accrued 
during  minority,  and  of  idiots,  lunatics,  insane  persons,  and 
persons  beyond  the  seas  at  the  time  the  claim  accrued,  en- 
titled to  the  claim,  shall  not  be  barred  if  the  suit  be  brought 
within  three  years  after  the  disability  has  ceased;  but  no 
other  disability  than  those  enumerated  shall  prevent  any 
claim  from  being  barred,  nor  shall  any  of  the  said  disabili- 
ties operate  cumulatively.  All  suits  brought  and  tried  under 
the  provisions  of  this  paragraph  shall  be  tried  by  the  court 
without  a  jury. 

"Twenty-first.  (Of  suits  for  the  unlawful  inclosure  of 
public  lands.)  Of  proceedings  in  equity,  by  writ  of  injunc- 
tion, to  restrain  violations  of  the  provisions  of  laws  of  the 
United  States  to  prevent  the  unlawful  inclosure  of  public 
lands;  and  it  shall  be  sufficient  to  give  the  court  jurisdiction 
if  service  of  original  process  be  had  in  any  civil  proceeding 
on  any  agent  or  employee  having  charge  or  control  of  the  in- 
closure. 

"Twenty-second.  (Of  suits  under  immigration  and  con- 
tract labor  laws.)  Of  all  suits  and  proceedings  arising  under 
any  law  regulating  the  immigration  of  aliens,  or  under  the 
contract  labor  laws. 

"Twenty-third.  (Of  suits  against  trusts,  monopolies,  and 
unlawful  combinations.)  Of  all  suits  and  proceedings  aris- 
ing under  any  law  to  protect  trade  and  commerce  against 
restraint  and  monopolies. 

"Twenty-fourth.  (Of  suits  concerning  allotments  of  land 
to  Indians.)  Of  all  actions,  suits,  or  proceedings  involving 
the  right  of  any  person,  in  whole  or  in  part  of  Indian  blood 
or  descent,  to  any  allotment  of  land  under  any  law  or  treaty. 
And  the  judgment  or  decree  of  any  such  court  in  favor  of 
any  claimant  to  an  allotment  of  land  shall  have  the  same 
effect,  when  properly  certified  to  the  Secretary  of  the  Inter- 
ior, as  if  such  allotment  had  been  allowed  and  approved  by 


112         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §   195 

him ;  but  this  provision  shall  not  apply  to  any  lands  now  or 
heretofore  held  by  either  of  the  Five  Civilized  Tribes,  the 
Osage  Nation  of  Indians,  nor  to  any  of  the  lands  within  the 
Quapaw  Indian  Agency :  Provided,  That  the  right  of  appeal 
shall  be  allowed  to  either  party  as  in  other  cases.  (Subd.  24 
as  amended  act  Dec.  21,  1911,  ch.  5,  37  Stat.  at  L.  46.) 

"Twenty-fifth.  (Of  partition  suits  where  United  States 
is  joint  tenant.)  Of  suits  in  equity  brought  by  any  tenant 
in  common  or  joint  tenant  for  the  partition  of  lands  in  cases 
where  the  United  States  is  one  of  such  tenants  in  common 
or  joint  tenants,  such  suits  to  be  brought  in  the  district  in 
which  such  land  is  situate." 

The  separate  heads  of  jurisdiction  in  the  section  above  quoted 
are  set  out  in  connection  with  statutory  provisions  on  exclusive 
jurisdiction,  removal,  amount  in  controversy,  and  venue  in  chapter 
12,  entitled,  "Summaries — Original  Jurisdiction,  Removal, 
Amount,  Venue,  for  the  Several  Matters  of  District  Court  Cogniz- 
ance." 

§  195.  Jurisdiction  by  Assignment.51  In  the  latter  part  of 
subdivision  first,  §  24,  Judicial  Code,  quoted  in  §  194,  supra,  it 
is  provided  as  follows: 

"No  district  court  shall  have  cognizance  of  any  suit  (ex- 
cept upon  foreign  bills  of  exchange)  to  recover  upon  any 
promissory  note  or  other  chose  in  action  in  favor  of  any  as- 
signee, or  of  any  subsequent  holder,  if  such  instrument  be  not 
made  by  any  corporation,  unless  such  suit  might  have  been 
prosecuted  in  such  court  to  recover  upon  said  note  or  other 
chose  in  action  if  no  assignment  had  been  made." 

The  purpose  of  this  provision  is  to  prevent  the  conferring  of 
jurisdiction  on  the  district  courts  by  fraudulent  assignments 
creating  an  apparent  diversity  of  citizenship.82 

The  exceptions  permitting  assignees  to  bring  suit  are:  1st, 
Suits  upon  foreign  bills  of  exchange;  2d,  suits  that  might  have 
been  prosecuted  in  such  courts  if  no  assignment  had  been  made; 

51  See  note  to  4  F.  S.  A.  306,  311;   Simpkin's  Federal  Equity  Suit,  2d  ed. 
pp.  208-222. 

52  See  Barclay  v.  Levee's  Commissioners.  1  Woods,  U.  S.  254,  2  Fed.  Cas. 
No.  977. 


§    195  DISTKICT    COURT JURISDICTION  113 

3d,  suits  upon  choses  in  action  made  by  a  corporation  payable  to 
bearer.53 

Another  exception  is  where  the  assignor  is  merely  the  nominal 
owner.54  The  objection  may  be  raised  at  any  time.55 

The  matter  being  jurisdictional,  where  the  citizenship  of  the 
original  payee  is  material,  it  should  be  shown  in  the  bill,  distinct- 
ly alleged,  and  not  by  inference.  The  form  of  allegation  may  be 
as  follows : 

"John  Doe,  plaintiff  alleges  that  at  all  times  since  the  assignment  to  him 

of  the  within  cause  of  action,  he  was  and  is  a  citizen  of  the  State  of , 

and  a  resident  of  the  County  of   in  said  State ;  that  his  assignor, 

Henry  Smith,  at  all  times  hereinafter  mentioned  was  and  is  a  citizen  of  the 

State  of   and  a  resident  of  the  County  of  in  said 

State,  and  competent  to  have  prosecuted  in  this  Court  a  suit  upon  the  cause 
of  action  herein  set  out  if  no  assignment  had  been  made;  that  defendant, 
Richard  Roe,  at  all  times  hereinafter  mentioned,  was  and  is  a  citizen  of 
the  State  of  residing  in  said  County  of  said  state." 

It  is  not  enough  to  allege  in  the  complaint  that  the  assignor  was 
a  citizen  of  a  different  state  from  defendant,  but  there  must  be 
shown  diverse  citizenship  of  the  assignor  and  the  defendant  at 
the  time  of  bringing  the  suit.56 

In  order  to  remove  a  case  from  a  state  to  the  Federal  court, 
the  bill  filed  in  the  state  court  must  show  proper  citizenship  of 
the  assignors.57 

Objection  may  be  made  by  motion  to  dismiss  if  the  defect  ap- 
pears on  the  face  of  the  complaint,  or  in  the  answer,  under  Equity 
Rule  29,  in  equity  suits;  or  in  an  action  at  law  by  an  appropriate 
form  of  state  pleading  provided  to  raise  jurisdictional  points. 
The  following  is  suggested  as  matter  to  be  incorporated  in  whatever 
form  of  pleading  is  used  to  raise  the  objection : 

"Defendant  further  alleges  that  the  bill  of  complaint  shows  that  plaintiff 

53  See  Xewgass  v.  New  Orleans,  33  Fed.  196,  198;  Wilson  v.  Knox  Co.  43  Fed. 
481;  New  Orleans  v.  Quinlan,  173  U.  S.  191,  43  L.  ed.  664,  19  Sup.  Ct.  Rep. 
329;  Quinlan  v.  New  Orleans,  92  Fed.  695;   Skinner  v.  Bar,  77  Fed.  816. 

54  Kirven  v.  Virginia  Carolina  Chemical  Co.  145  Fed.  288,  7  Ann.  Gas.  219, 
76  C.  C.  A.  172. 

58  Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  113,  66  C.  C.  A.  179. 
66  Benjamin  v.  City  of  New  Orleans,  71  Fed.  758;  same  case  circuit  court  of 
appeals,  74  Fed.  417,  20  C.  C.  A.  591,  41  U.  S.  Appeal,  178. 
57  Simkin's  Fed.  Equity  Suit  2d  ed.  p.  220. 
Montg. — 8. 


ll-i        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  198 

derives  title   and   right   to   sue   through    an    assignment   from   Henry    Smith, 

that  said  Henry  Smith  was  and  is  now  a  citizen  of  the  State  of   ; 

and,  therefore,  that  there  is  no  diversity  of  citizenship  on  which  to  base  the 
jurisdiction  of  this  court  in  this  suit." 

§  196.  Agriculture. 

§  5,  Act  of  April  26,  1910,  Ch.  191,  Comp.  St.  1911,  p. 
1370,  1912  Supp.  F.  8.  A.  v.  1,  p.  4-  "That  it  shall  be  the 
duty  of  each  district  attorney  to  whom  the  Secretary  of 
Agriculture  shall  report  any  violation  of  this  act,  or  to  whom 
any  director  of  experiment  station  or  agent  of  any  state, 
territory,  or  the  District  of  Columbia,  under  authority  of 
the  Secretary  of  Agriculture,  shall  present  satisfactory  evi- 
dences of  any  such  violation,  to  cause  appropriate  proceed- 
ings to  be  commenced  and  prosecuted  in  the  proper  courts 
ofHhe  United  States,  without  delay,  for  the  enforcement  of 
the  penalties  as  in  such  case  herein  provided.  (36  Stat.  at 
L.  332.)  " 

§  197.  Alien  Enemies. 

§  4069,  R.  S.,  Comp.  St  1901,  pp.  2762,  2763,  1  F.  S.  A. 
436.  "After  any  such  proclamation  has  been  made,  the  sev- 
eral courts  of  the  United  States  having  criminal  jurisdiction, 
and  the  several  justices  and  judges  of  the  courts  of  the  Unit- 
ed States,  are  authorized,  and  it  shall  be  their  duty,  upon 
complaint  against  any  alien  enemy  resident  and  at  large  with- 
in such  jurisdiction  or  district,  to  the  danger  of  the  public 
peace  or  safety,  and  contrary  to  the  tenor  or  intent  of  such 
proclamation,  or  other  regulations  which  the  President  may 
have  established,  to  cause  such  alien  to  be  duly  apprehended 
and  conveyed  before  such  court,  judge,  or  justice;  and  after 
a  full  examination  and  hearing  on  such  complaint,  and 
sufficient  cause  appearing,  to  order  such  alien  to  be  removed 
out  of  the  territory  of  the  United  States,  or  to  give  sureties 
for  his  good  behavior,  or  to  be  otherwise  restrained,  con- 
formably to  the  proclamation  or  regulations  established  as 
aforesaid,  and  to  imprison  or  otherwise  secure  such  alien, 
until  the  order  which  may  be  so  made  shall  be  performed." 

§  198.  Same— Duties  of  Marshal. 

§  4070,  R.  S.,  Comp.  St.  1901,  p.  2763,  1  F.  8.  A.  436. 
"When  an  alien  enemy  is  required  by  the  President,  or  by 
order  of  any  court,  judge,  or  justice,  to  depart  and  to  be  re- 


§    200  DISTRICT    COURT JURISDICTION  115 

moved,  it  shall  be  the  duty  of  the  marshal  of  the  district 
in  which  he  shall  be  apprehended  to  provide  therefor,  and  to 
execute  such  order  in  person,  or  by  his  deputy,  or  other 
discreet  person  to  be  employed  by  him,  by  causing  a  removal 
of  such  alien  out  of  the  territory  of  the  United  States;  and 
for  such  removal  the  marshal  shall  have  the  warrant  of  the 
President,  or  of  the  court,  judge,  or  justice  ordering  the  same, 
as  the  ca^e  may  be." 

§  19C.  Customs  Duties. 

§  3,  Act  June  10, 1910,  Ch.  283,  Comp.  St.  1911,  pp.  893, 
894,  1912  Si/pp.  F.  S.  A.  v.  1,  p.  49.  "That  any  licensed 
custom-house  broker  aggrieved  by  the  decision  of  the  Sec- 
retary of  the  Treasury  may,  within  thirty  days  thereafter, 
and  not  afterwards,  apply  to  the  United  States  circuit  court 
for  the  circuit  in  which  the  collection  district  is  situated  for 
a  review  of  such  decision.  Such  application  shall  be  made 
by  filing  in  the  office  of  the  clerk  of  said  court  a  petition 
praying  relief  in  the  premises.  Thereupon  the  court  shall 
immediately  give  notice  in  writing  of  such  application  to 
the  Secretary  of  the  Treasury,  who  shall  forthwith  transmit 
to  said  court  the  record  and  evidence  taken  in  the  case,  to- 
gether with  a  statement  of  his  decision  therein.  The  filing 
of  such  application  shall  operate  as  a  stay  of  the  revocation 
of  the  license.  The  matter  may  be  brought  on  to  be  heard 
before  the  said  court  in  the  same  manner  as  a  motion,  by 
either  the  United  States  district  attorney  or  the  attorney 
for  the  custom-house  broker,  and  the  decision  of  said  United 
States  circuit  court  for  the  circuit  in  which  the  collection 
district  is  situated  shall  be  upon  the  merits  as  disclosed  by 
the  record  and  be  final,  and  the  proceedings  remanded  to  the 
Secretary  of  the  Treasury  for  further  action  to  be  taken  in 
accordance  with  the  terms  of  the  decree.  (36  Stat.  at  L. 
465.)  " 

See  subd.  5,  §  24,  Judicial  Code,  quoted  §  194,  infra,  giving 
the  district  court  original  jurisdiction  of  cases  arising  under  the 
customs  laws. 

§  200.  Rivers,  Harbors,  and  Canals — Actions  to  Remove 
Obstructions. 

Ft.  §  5,  Act  June  23,  1910,  Ch.  S60,  86  Stat.  at.  L.  595, 


110        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  203 

Comp.  St.  1911,  p.  1561,  1912  Supp.  F.  S.  A.  v.  1,  p.  348. 
"And  the  removal  or  (of)  any  structures  erected  or  main- 
tained in  violation  of  the  provisions  of  this  act  or  the  order 
or  direction  of  the  Secretary  of  War  or  the  Chief  of  Engi- 
neers made  in  pursuance  thereof  may  be  enforced  by  in- 
junction, mandamus,  or  other  summary  process,  upon  appli- 
cation to  the  circuit  court  in  the  district  in  which  such 
structure  may,  in  whole  or  in  part,  exist,  and  proper  pro- 
ceedings to  this  end  may  be  instituted  under  the  direction 
of  the  Attorney  General  of  the  United  States  at  the  request 
of  the  Chief  of  Engineers  or  the  Secretary  of  War;  and  in 
case  of  ally  litigation  arising  from  any  obstruction  or  al- 
leged obstruction  to  navigation  created  by  the  construction 
of  any  dam  under  this  act  the  cause  or  question  arising  may 
be  tried  before  the  circuit  court  of  the  United  States  in  any 
district  in  which  any  portion  of  said  obstruction  or  dam 
touches." 

§  201.  White  Slave  Traffic. 

§  5,  Act  June  25,  1910,  Ch.  395,  36  Stat.  at  L.  826,  Comp. 
St.  1911,  p.  1345.  "That  any  violation  of  any  of  the  above 
sections  two,  three,  and  four  shall  be  prosecuted  in  any 
court  having  jurisdiction  of  crimes  within  the  district  in 
which  said  violation  was  committed,  or  from,  through,  or  into 
which  any  such  woman  or  girl  may  have  been  carried  or 
transported  as  a  passenger  in  interstate  or  foreign  com- 
merce, or  in  any  territory,  or  the  District  of  Columbia,  con- 
trary to  the  provisions  of  any  of  said  sections." 

§  202.  Appellate  Jurisdiction  Chinese  Exclusion  Laws. 

§  25,  Judicial  Code,c  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  140,  1912  Supp.  F.  S.  A.  v.  1,  p.  143.  "The  dis- 
trict courts  shall  have  appellate  jurisdiction  of  the  judg- 
ments and  orders  of  United  States  commissioners  in  cases 
arising  under  the  Chinese  exclusion  laws." 

§  203.  Appellate  Jurisdiction  Yellowstone  National  Park. 

§  26 }  Judicial  Code,*  36  Stat.  at  L.  1094,  Comp.  St. 

c  Drawn  from  act  of  Sept.  13,  1888,  ch.  10]5,  §  13.  Rose's  Code  §  2405 
Foster's  Fed.  Prac.  (4th  ed.)  p.  222,  25  Stat.  at  L.  479,  Comp.  St.  1901  p.' 
1317,  1  F.  S.  A.  772. 

<1  Re-enactinpr  act  of  May  7,  1894,  ch.  72,  28  Stat.  at  L.  74,  Comp.  St. 
1801,  p.  1563,  6  F.  S.  A.  620. 


§    205  DISTRICT    COURT JURISDICTION"  117 

1911,  p.  140,  1912  Supp.  F.  8.  A.  v.  1,  p.  144.  "The  dis- 
trict court  of  the  district  of  Wyoming  shall  have  jurisdiction 
of  all  felonies  committed  within  the  Yellowstone  National 
.  s  Park,  and  appellate  jurisdiction  of  judgments  in  cases  of  con- 
viction before  the  commissioner  authorized  to  be  appointed 
under  section  five  of  an  act  entitled,  "An  Act  to  Protect  the 
Birds  and  Animals  in  Yellowstone  National  Park,  and  to 
Punish  Crimes  in  Said  Park,  and  for  Other  Purposes,"  ap- 
proved May  seventh,  eighteen  hundred  and  ninety-four." 

§  204.  Jurisdiction    of    Crimes    on    Indian    Reservations 
South  Dakota. 

§  27,  Judicial  Code*  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  140,  1912  F.  S.  A.  v.  1,  p.  144-  "The  district  court 
of  the  United  States  for  the  district  of  South  Dakota  shall 
have  jurisdiction  to  hear,  try,  and  determine  all  actions  and 
proceedings  in  which  any  person  shall  be  charged  with  the 
crime  of  murder,  manslaughter,  rape,  assault  with  intent  to 
kill,  arson,  burglary,  larceny,  or  assault  with  a  dangerous 
weapon,  committed  within  the  limits  of  any  Indian  reserva- 
tion in  the  state  of  South  Dakota." 

§  205.  Power  to  Enforce  Foreign  Consular  Awards. 

§  271,  Judicial  Code,*  36  Stat  at  L.  1163,  Comp.  St. 
1911,  p.  237,  1912  Supp.  F.  S.  A.  v.  1,  p.  244>  "The  dis- 
trict courts  and  the  United  States  commissioners  shall  have 
power  to  carry  into  effect,  according  to  the  true  intent  and 
meaning  thereof,  the  award  or  arbitration  or  decree  of  any 
consul,  vice  consul,  or  commercial  agent  of  any  foreign  nation, 
made  or  rendered  by  virtue  of  authority  conferred  on  him  as 
such  consul,  vice  consul,  or  commercial  agent,  to  sit  as  judge 
or  arbitrator  in  such  differences  as  may  arise  between  the  cap- 
tains and  crews  of  the  vessels  belonging  to  the  nation  whose 
interests  are  committed  to  his  charge,  application  for  the 
exercise  of  such  power  being  first  made  to  such  court  or 
commissioner,  by  petition  of  such  consul,  vice  consul,  or  com- 
mercial agent.  And  said  courts  and  commissioners  may 

e  Re-enacting  act  of  February  2,  1903,  ch.  351,  Rose's  Code,  §  155,  32  Stat. 
at  L.  793,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  257,  258,  10  F.  S.  A.  121.  In 
general,  Hollister  v.  United  States,  145  Fed.  733,  76  C.  C.  A.  337. 

'Re-enacting  of  §  728,  R.  S.,  Rose's  Code,  §§  158,  (540,  1286,  Comp.  St.. 
1901,  p.  584,  4  F.  S.  A.  551,  which  section  is  repealed  by  §  297,  Judicial  Code. 
In  jreueral,  United  States  v.  Allred,  155  U.  S.  591,  39  L.  ed.  273,  15  Sup.  ft. 
Rep.  231. 


118        MONTGOMERY'S  MANUAL  or  FEDERAL  PROCEDURE      §  207 

issue  all  proper  remedial  process,  mesne  and  final,  to  carry 
into  full  effect  such  award,  arbitration,  or  decree,  and  to  en- 
force obedience  thereto  by  imprisonment  in  the  jail  or  other 
place  of  confinement  in  the  district  in  which  the  United 
States  may  lawfully  imprison  any  person  arrested  under  the 
authority  of  the  United  States,  until  such  award,  arbitration, 
or  decree  is  complied  with,  or  the  parties  are  otherwise  dis- 
charged therefrom,  by  the  consent  in  writing  of  such  consul, 
vice  consul,  or  commercial  agent,  or  his  successor  in  office, 
or  by  the  authority  of  the  foreign  government  appointing 
such  consul,  vice  consul,  or  commercial  agent :  Provided,  how- 
ever, That  the  expenses  of  the  said  imprisonment  and  main- 
tenance of  the  prisoners,  and  the  cost  of  the  proceedings, 
shall  be  borne  by  such  foreign  government,  or  by  its  consul, 
vice  consul,  or  commercial  agent  requiring  such  imprison- 
ment. The  marshals  of  the  United  States  shall  serve  all 
such  process,  and  do  all  other  acts  necessary  and  proper  to 
carry  into  effect  the  premises  under  the  authority  of  said 
courts  and  commissioners." 

§  206.  Powers  of  Foreign  Consuls  over  Disputes  between 
Seamen. 

§  4079,  R.  8.,  Comp.  St.  1901,  p.  2766,  2  F.  8.  A.  817, 
Rose's  Code,  §  1524.  "Whenever  it  is  stipulated  by  treaty 
or  convention  between  the  United  States  and  any  foreign 
nation  that  the  consul  general,  consuls,  vice  consuls,  or  con- 
sular or  commercial  agents  of  each  nation,  shall  have  ex- 
clusive jurisdiction  of  controversies,  difficulties,  or  disorders 
arising  at  sea  or  in  the  waters  or  ports  of  the  nation,  between 
the  master  or  officers  and  any  of  the  crew,  or  between  any  of 
the  crew  themselves,  of  any  vessel  belonging  to  the  nation 
represented  by  such  consular  officer,  such  stipulations  shall 
be  executed  and  enforced  within  the  jurisdiction  of  the 
United  States  as  hereinafter  declared.  But  before  this  sec- 
tion shall  take  effect  as  to  the  vessels  of  any  particular  nation 
having  such  treaty  with  the  United  States,  the  President 
shall  be  satisfied  that  similar  provisions  have  been  made  for 
the  execution  of  such  treaty  by  the  other  contracting  party, 
and  shall  issue  his  proclamation  to  that  effect,  declaring 
this  section  to  be  in  force  as  to  such  nation." 

§  207.  Arrest  of  Seamen  on  Application  of  Consul. 

§  4080,  R.  8.,  Comp.  St.  1901,  pp.  2766,  2767,  2  F.  8.  A. 


208  DISTRICT    COUET JURISDICTION  119 

818,  Rose's  Code,  §  1525.  "In  all  cases  within  the  pur- 
view of  the  preceding  section,  the  consul  general,  consul, 
or  other  consular  or  commercial  authority  of  such  foreign 
nation  charged  with  the  appropriate  duty  in  the  particular 
case,  may  make  application  to  any  court  of  record  of  the 
United  States,  or  to  any  judge  thereof,  or  to  any  commis- 
sioner of  a  circuit  court,  setting  forth  that  such  controversy, 
difficulty,  or  disorder  has  arisen,  briefly  stating  the  nature 
thereof,  and  when  and  where  the  same  occurred,  and  ex- 
hibiting a  certified  copy  or  extract  of  the  shipping-articles, 
roll,  or  other  proper  paper  of  the  vessel,  to  the  effect  that 
the  person  in  question  is  of  the  crew  or  ship's  company  of 
such  vessel ;  and  further  stating  and  certifying  that  such  per- 
son has  withdrawn  himself,  or  is  believed  to  be  about  to  with- 
draw himself,  from  the  control  and  discipline  of  the  master 
and  officers  of  the  vessel,  or  that  he  has  refused,  or  is  about 
to  refuse,  to  submit  to  and  obey  the  lawful  jurisdiction  of 
such  consular  or  commercial  authority  in  the  premises;  and 
further  stating  and  certifying  that,  to  the  best  of  the  knowl- 
edge and  belief  of  the  officer  certifying,  such  person  is  not 
a  citizen  of  the  United  States.  Such  application  shall  be 
in  writing  and  duly  authenticated  by  the  consular  or  other 
sufficient  official  seal.  Thereupon  such  court,  judge,  or  com- 
missioner shall  issue  his  warrant  for  the  arrest  of  the  person 
so  complained  of,  directed  to  the  marshal  of  the  United 
States  for  the  appropriate  district,  or  in  his  discretion  to 
any  person,  being  a  citizen  of  the  United  States,  whom  he 
may  specially  depute  for  the  purpose,  requiring  such  person 
to  be  brought  before  him  for  examination  at  a  certain  time 
and  place." 

§  208.  Commitment  and  Discharge. 

§  4081,  R.  S.f  Comp.  St.  1901,  p.  2161,  2  F.  8.  A.  818, 
Rose's  Code,  §  1526.  "If,  on  such  examination,  it  is  made 
to  appear  that  the  person  so  arrested  is  a  citizen  of  the  Unit- 
ed States,  he  shall  be  forthwith  discharged  from  arrest,  and 
shall  be  left  to  the  ordinary  course  of  law.  But  if  this  is 
not  made  to  appear,  and  such  court,  judge,  or  commissioner 
finds,  upon  the  papers  hereinbefore  referred  to,  a  sufficient 
prima  facie  case  that  the  matter  concerns  only  the  internal 
order  and  discipline  of  such  foreign  vessel,  or,  whether  in 
its  nature  civil  or  criminal,  does  not  affect  directly  the  execu- 
tion of  the  laws  of  the  United  States,  or  the  rights  and  duties 
of  any  citizen  of  the  United  States,  he  shall  forthwith,  by 


120        MONTGOMERY'S  MANUAL,  OF  FEDERAL  PROCEDURE      §  211 

his  warrant,  commit  such  person  to  prison,  where  prisoners 
under  sentence  of  a  court  of  the  United  States  may  be  law- 
fully committed,  or,  in  his  discretion,  to  the  master  or  chief 
officer  of  such  foreign  vessel,  to  be  subject  to  the  lawful  or- 
ders, control,  and  discipline  of  such  master  or  chief  officer, 
and  to  the  jurisdiction  of  the  consular  or  commercial  au- 
thority of  the  nation  to  which  such  vessel  belongs,  to  the  ex- 
clusion of  any  authority  or  jurisdiction  in  the  premises  of 
the  United  States  or  any  state  thereof.  No  person  shall  be 
detained  more  than  two  months  after  his  arrest,  but  at  the 
end  of  that  time  shall  be  set  at  liberty  and  shall  not  again  be 
arrested  for  the  same  cause.  The  expenses  of  the  arrest  and 
the  detention  of  the  person  so  arrested  shall  be  paid  by  the 
consular  officers  making  the  application." 

§  209.  Jurisdiction  in  Cases  Transferred  from  Territorial 
Courts. 

§  64,  Judicial  Code*  36  Stat.  at  L.  1104,  Com,p.  St. 
1911,  p.  155,  1912  Supp.  F.  S.  A.  v.  1,  p.  158.  "When  any 
territory  is  admitted  as  a  state,  and  a  district  court  is  es- 
tablished therein,  the  said  district  court  shall  take  cognizance 
of  all  cases  which  were  pending  and  undetermined  in  the 
trial  courts  of  such  territory,  from  the  judgments  or  decrees 
to  be  rendered  in  which  writs  of  error  could  have  been  sued 
out  or  appeals  taken  to  the  Supreme  Court  or  to  the  cir- 
cuit court  of  appeals,  and  shall  proceed  to  hear  and  determine 
the  same." 

§  210.  Jurisdiction  under  Reclamation  Act. 

§  5,  Act  August  9,  1912,  Ch.  218,  37  Stat.  at  L.  67. 
"That  jurisdiction  of  suits  by  the  United  States  for  the 
enforcement  of  the  provisions  of  this  act  is  hereby  con- 
ferred on  the  United  States  district  courts  of  the  districts  in 
which  the  lands  are  situated." 

§  211.  Jurisdiction  under  Income  Tax  Law. 

§  3176,  subd.  K,  Act  Oct..  3,  1913,  Ch.  16,  38  Slat,  at 
L.  179.  "That  jurisdiction  is  hereby  conferred  on  the 
district  courts  of  the  United  States  within  which  any  per- 
son summoned  under  this  section  to  appear  to  testify 
or  to  produce  books  shall  reside,  to  compel  such  attendance, 
production  of  books,  and  testimony,  by  appropriate  process. 

ar  Re-enacting  substantially  §  569,  R.  S.,  Rose's  Code.  §  213,  Foster's  Fed. 
Prac.  (4th  ed.)  p.  1455,  Comp.  St.  1901,  p.  462,  4  F.  S.  A.  238,  which 
section  is  repealed  by  §  297,  Judicial  Code.  In  general,  Dunton  et  al.  v.  Muth 
et  a!.  45  Fed.  390. 


212  DISTRICT    COURT JURISDICTION  121 


§  212.  Jurisdiction   in  Arbitration   of   Disputes   between 
Common  Carriers  and  Employees. 

Ft.  §  5,  Act  July  15,  1913,  Ch.  6,  38  Stat.  at  L.  106. 
Arbitrators  under  the  above  act  "may  invoke  the  aid  of  the 
United  States  court  to  compel  witnesses  to  attend  and  testi- 
fy and  to  produce  such  books,  papers,  contracts,  agreements, 
and  documents  to  the  same  extent  and  under  the  same 
conditions  and  penalties  as  is  provided  for  in  the  act  to 
regulate  commerce  approved  February  fourth,  1887,  and 
amendments  thereto." 

§  8,  Act  July  15,  1913,  Ch.  6,  38  Stat.  at  L.  107.  "That 
the  award,  being  filed  in  the  clerk's  office  of  a  district  court 
of  the  United  States  as  hereinbefore  provided,  shall  go  into 
practical  operation,  and  judgment  shall  be  entered  thereon 
accordingly  at  the  expiration  of  ten  days  from  such  filing, 
unless  within  ten  days  either  party  shall  file  exceptions 
thereto  for  matter  of  law  apparent  on  the  face  of  the  record, 
in  which  case  said  award  shall  go  into  practical  operation, 
and  judgment  be  entered  accordingly,  when  such  exceptions 
shall  have  been  finally  disposed  of  either  in  the  district 
court  or  on  appeal  therefrom.  At  the  expiration  of  ten 
days  from  the  decision  of  the  district  court  upon  exceptions 
taken  to  said  award  as  aforesaid,  judgment  shall  be  entered 
in  accordance  with  said  decision,  unless  during  said  ten 
days  either  party  shall  appeal  therefrom  to  the  circuit  court 
of  appeals.  In  such  case  only  such  portion  of  the  record 
shall  be  transmitted  to  the  appellate  court  as  is  necessary 
to  the  proper  understanding  and  consideration  of  questions 
of  law  presented  by  said  exceptions  and  to  be  decided.  The 
determination  of  the  circuit  court  of  appeals  upon  said  ques- 
tions shall  be  final,  and,  being  certified  by  the  clerk  thereof 
to  the  district  court,  judgment  pursuant  thereto  shall  there- 
upon be  entered  by  said  district  court.  If  exceptions  to  an 
award  are  finally  sustained,  judgment  shall  be  entered  set- 
ting aside  the  award  in  whole  or  in  part;  but  in  such  case 
the  parties  may  agree  upon  a  judgment  to  be  entered  dis- 
posing of  the  subject-matter  of  the  controversy,  which  judg- 
ment when  entered  shall  have  the  same  force  and  effect  as 
judgment  entered  upon  an  award.  Xothing  in  this  act  shall 
be  construed  to  require  an  employee  to  render  personal  serv- 
ice without  his  consent,  and  no  injunction  or  other  legal 
process  shall  be  issued  which  shall  compel  the  performance 
by  any  employee  against  his  will  of  a  contract  for  personal 
labor  or  service." 


CHAPTER  7. 

FEDERAL  QUESTION— GROUND  OF  JURISDICTION. 

Sec. 

215.  What  Is  a  Federal  Question? 

216.  Arises  in  Suits  with  Federal  Officers  Involving  Official  Acts. 

217.  Arises  in  Suits  with  Federal  Corporations  Existing  under  Federal  Laws. 

218.  Exception — Suits  with  National  Banks  Other  Than  by  or  against  Officers 

of  the  United  States. 

219.  Arising  under  the  Constitution. 

220.  As  a  Ground  of  Original  Jurisdiction. 

221.  As  a  Ground  for  Removal. 

222.  Citizenship  not  Material  in  Suits  Involving  a  Federal  Question  except 

When  Affecting  Venue. 

223.  Amount  Required  to  Be  in  Controversy. 

224.  Question  Must  Appear  on  the  Face  of  the  Bill  in  the  Federal  Court. 

225.  How  Question  Must  Appear  in  a  State  Court  to  Be  Removed  to  Federal 

Court. 

226.  Raising  the   Issue   as   to   Federal   Question. 

7;t,        '    i  ,j.^^.  .  [f  . 

§  215.  What  Is  a  Federal  Question?    A  Federal  question  is 

one  arising  under  the  Constitution  or  a  law  of  the  United  States 
or  treaties  made,  whenever  the  correct  decision  of  the  suit  depends 
upon  the  construction  of  either,  or  when  the  title  or  right  set  up 
by  the  party  may  be  defeated  by  one  construction  or  sustained  by 
the  opposite  construction.1 

A  Federal  question  does  not  arise  merely  because  it  becomes 
necessary  in  the  progress  of  the  litigation  to  construe  the  Federal 
Constitution,  laws,  or  treaties.8 

1  Cohens  v.  Virginia,  6  Wheat.  379,  5  L.  ed.  285;  Osborn  v.  Bank,  9  Wheat. 
822,  6  L.  ed.  224;  Oregon  v.  Three  Sisters  Irrigation  Company,  158  Fed.  346; 
Hall  v.  Chicago,  etc.,  Railroad  Company.  149  Fed.  564. 

2  .Miller  v.  Illinois  Central  R.  Co.  168  Fed.  982;  Leggett  v.  Great  Northern  R. 
Co.  180  Fed.  314. 

122 


§    216  FEDERAL    QUESTION GROUND    OF    JURISDICTION          123 

§  216.  Arises  in  Suits  with  Federal  Officers  Involving  Of- 
ficial Acts. 

Pt.  §  24,  Judicial  Code,*  36  Stat.  at  L.  1091,  Comp.  St. 
1911,  p.  135,  1912  Supp.  F.  S.  A.  v.  1,  p.  139.  "The  dis- 
trict court  shall  have  original  jurisdiction  as  follows : 

"First.  Of  all  suits  of  a  civil  nature,  at  common  law  or 
in  equity,  brought  by  the  United  States,  or  by  an  officer  there- 
of authorized  by  law  to  sue.  ..." 

Suits  brought  by  Federal  officers  find  their  authority  in  this 
section  and  preceding  provisions  of  the  law  of  like  character. 
Suits  against  Federal  officers  stand  on  a  different  footing  and  are 
discussed  hereafter.  A  receiver  of  a  national  bank  appointed  by 
a  Comptroller  of  Currency  comes  within  this  clause,  and  may 
sue  without  regard  to  the  citizenship  of  the  parties  or  the  amount 
involved.3  So,  also,  an  agent  of  a  national  bank  who  has  dis- 
placed a  receiver  comes  under  the  rule,*  and  a  Postmaster  General 
suing  under  the  official  bond  of  a  postmaster.5 

Suits  against  United  States  officers  do  not  come  under  the  above 
quoted  provision,6  but  are  held  to  arise  under  the  laws  of  the 
United  States  as  necessarily  involving  the  construction  thereof. 

"An  action  against  a  United  States  marshal  and  his  deputy, 
growing  out  of  their  acts  in  executing  the  process  of  a  court  of  the 
United  States,  is,  regardless  of  citizenship  of  the  parties,  -within 
the  jurisdiction  of  the  United  States  circuit  (now  district)  court 
for  the  proper  district;  and  this  is  so  even  where  there  is  no  dis- 
puted question  of  Federal  law  in  the  case."  7 

"A  case  in  which  an  attack  upon  the  official  acts  of  a  United 
States  marshal  is  made  covertly,  by  suppressing  the  facts  which 
constitute  an  essential  part  of  the  res  gestce  in  the  first  pleading,  is 
none  the  less  a  case  arising  under  the  laws  of  the  United  States." 

3  Gibson  v.  Peters,   150  U.  S.  342,  37   L.  ed.   1104,   14  Sup.  Ct.  Rep.   134; 
Schofield  v.  Palmer,  134  Fed.  753;  Murray  v.  Chambers,  151  Fed.  142. 

4  McCbnville  v.  Gilmour,  36  Fed.  277,  1  L.R.A.  498. 

5  Postmaster  General  v.   Early,   12   Wheat.   136,  6  L.  ed.  577;    Postmaster 
General  v.  Furber,  4  Mason,  333,  19  Fed.  Cas.  No.  11,308. 

SHallam  v.  Tillinghast,  75  Fed.  849. 

1  Wood  v.  Drake,  70  Fed.  882,  citing  Bock  v.  Perkins,   139  U.  S.  628,   35 
L.  ed.  314,  11  Sup.  Ct.  Rep.  677;  Grant  v.  Bank,  47  Fed.  673. 
8  Ibid. 
»  For  annotation  of  this  §  24,  Judicial  Code,  see  footnote  b,  ante,  §  194. 


124         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  210 

"The  national  government  must  be  permitted  to  exercise  its  pow- 
er within  the  states  through  its  own  agencies.  The  national  courts 
are  the  proper  tribunals  for  adjudicating  of  questions  as  to  the 
validity  of  their  own  process,  and  the  lawfulness  of  the  acts  of 
their  own  ministers  in  executing  the  same." ' 

The  following  are  illustrations  of  suits  by  and  against  Federal 
officers  held  to  involve  Federal  question  by  reason  of  the  character 
of  the  party: 

Action  against  executors  and  heirs  of  an  internal  revenue  col- 
lector to  recover  taxes  alleged  to  have  been  illegally  collected  by 
such  collector ;  10  a  suit  upon  a  bond  of  the  clerk  of  the  circuit 
court ;  n  on  bond  of  a  marshal ;  12  to  recover  damages  for  wrongful 
levy  by  marshal ;  18  suit  on  government  contractor's  bond.14 

Special  provision  is  made  for  removal  of  cases  against  a  United 
States  officer  acting  under  the  civil  rights  laws, 

PL  §  31,  Judicial  Code*  36  Stat.  at  L.  1906,  Comp.  St. 
1911,  p.  US,  1912  Supp.  F.  8.  A.  v.  1,  p.  147.  "When  any 
civil  suit  or  criminal  prosecution  is  commenced  in  any  state 
court,  for  any  cause  whatsoever,  .  .  .  against  any  officer, 
civil  or  military,  or  other  person,  for  any  arrest  or  imprison- 
ment or  other  trespasses  or  wrongs  made  or  committed  by 
virtue  of  or  under  color  of  authority  derived  from  any  law 
providing  for  equal  rights  as  aforesaid,  or  refusing  to  do 
any  act  on  the  ground  that  it  would  be  inconsistent  with  such 
law,  such  suit  or  prosecution  may,  upon  the  petition  of  such 
defendant,  filed  in  said  state  court  at  any  time  before  the 

9  Wood  v.  Drake,  70  Fed.  881-883,  and  cases  cited. 

10  Sinking  Fund   Commissioners  v.   Buckner,   48   Fed.  533;   see  also   Orner 
v.  Saunders,  3  Dill  284-18,  Fed.  Cas.  No.  10,584. 

"Howard  v.  United  States,  184  U.  S.  681,  46  L.  ed.  754,  22  Sup.  Ct.  Rep. 
543. 

l2Feiberman  v.  Packard,  ]09  U.  S.  421,  27  L.  ed.  984,  3  Sup.  Ct.  Rep.  289. 

13  Hurst  v.  Cobb,  61  Fed.  1.  But  see  McKee  v.  Rains,  10  Wall.  22,  19 
L.  ed.  860,  where  a  suit  against  a  marshal  for  trespass  is  levying  on  goods 
for  a  third  party,  held  not  to  involve  a  Federal  question. 

"Mullin  v.  United  States,  109  Fed.  817,  48  C.  C.  A.  677. 

b  Re-enacting  §  641,  R.  S.,  Rose's  Code,  §§  137,  1149,  1150,  1151,  Fos- 
ter's Fed.  Prac.  (4th  ed.)  pp.  43,  1201,  1458,  1463,  1511,  1514,  1528,  1531,. 1576, 
Comp.  St.  1901,  p.  520,  4  F.  S.  A.  258,  which  section  is  repealed  by  §  297, 
Judicial  Code. 

Constitutional.  Ex  parte  Virginia,  100  U.  S.  339,  25  L.  ed.  676;  Strauder 
v.  West  Virginia,  100  U.  S.  310,  25  L.  ed.  667;  California  v.  Chue  Fan,  42 
Fed.  865. 


§    217  FEDERAL    QUESTION GROUND    OF    JURISDICTION         125 

trial  or  final  hearing  of  the  cause  stating  the  facts  and  veri- 
fied by  oath,  be  removed  for  trial  into  the  next  district  court 
to  be  heard  in  the  district  where  it  is  pending.  .  .  ." 

Federal  receivers. 

It  was  formerly  held  that  a  Federal  question  arose  in 
the  case  of  receivers  appointed  by  Federal  courts  by  virtue  of  a 
Federal  appointment.  But  it  is  now  held  that  such  appointment 
does  not  raise  a  Federal  question  so  as  to  allow  removal  to  a 
Federal  court  on  that  ground.16 

§  66  of  the  Judicial  Code  permits  a  Federal  receiver  to  be 
sued  without  previous  leave  of  the  court  in  respect  to  any  act  or 
transaction  of  his  in  carrying  on  the  business  connected  with  the 
property. 

§  217.  Arises  in  Suits  with  Federal  Corporations  Existing 
under  Federal  Laws.  A  Federal  corporation  is  organized  un- 
der and  depends  upon  a  Federal  law.  It  is  held  that  a  suit 
against  a  Federal  corporation  therefore  involves  a  Federal  ques- 
tion irrespective  of  the  citizenship  of  the  parties  or  any  other 
law  involved.  If  a  complaint  filed  in  the  state  court  shows  on  its 
face  that  the  defendant  corporation  is  one  organized  under  Fed- 
eral laws,  except  in  cases  of  national  banks,16  the  suit  may  be  re- 
moved to  the  Federal  court  as  presenting  a  Federal  question.17 

It  has  even  been  held  that  the  suit  is  removable,  though  there 
is  nothing  in  the  plaintiff's  pleading  showing  that  defendant  is 
a  Federal  corporation.18  But  a  different  holding  appears  in  Ore- 
gon Short  Line  v.  Skottoee,  162  U.  S.  490,  16  Sup.  Ct.  Kep.  869, 
40  L.  ed.  1048. 


15  Pope  v.  Louisville  R.  R.-Co.  173  U.  S.  573,  43  L.  ed.  814,  19  Sup.  Ct.  Rep. 
500,  and  other  cases  cited  in  Simkin's  Federal  Equity  Suit,  2d  ed.  p.  163;  Dale 
v.  Smith,  182  Fed.  360;  People  v.  Bleecker  St.  R.  Co.  178  Fed.  156;  Pepper 
v.  Rogers,  128  Fed.  987 ;  Rural  Home  Telephone  Co.  v.  Powers,  176  Fed.  986. 

16  §  213,  post. 

17  Pacific  Railroad  Removal  Cases,  115  U.  S.  1,  5  Sup.  Ct.  Rep.  1113,  29  L. 
«d.  319;  Simkin's  Fed.  Eq.  Suit   (2d  ed.)   eh.  25. 

"Texas  etc.  R.  R.  Co.  v.  Cody,  166  U.  S.  606,  17  Sup.  Ct.  Rep.  703,  41  L. 
ed.  1132;  Supreme  lodge,  etc.,  v.  Wilson,  66  Fed.  785,  14  C.  C.  A.  264;  Sulli- 
van v.  Barnard,  81  Fed.  886;  Pitkin  v.  Cowen,  91  Fed,  599;  Water  v.  Keves, 
00  U.  S.  199,  24  L.  ed.  656. 


126         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  21D 

§  218.  Exception — Suits  with  National  Banks  Other  Than 
by  or  against  Officers  of  the  United  States. 

Subd.  16,  §  24,  Judicial  Code,  36  Stat.  at  L.  1091,  Comp. 
St.  1911,  p.  138,  1912  Supp.  F.  S.  A.  v.  1,  p.  140.  "Of  all 
cases  commenced  by  the  United  States,  or  by  direction  of  any 
officer  thereof,  against  any  national  banking  association,  and 
cases  for  winding  up  the  affairs  of  any  such  bank ;  and  of  all 
suits  brought  by  any  banking  association  established  in  the 
district  for  which  the  court  is  held,  under  the  provisions  of 
title  'Xational  Banks,'  Revised  Statutes,  to  enjoin  the  Comp- 
troller of  the  Currency,  or  any  receiver  acting  under  his 
direction,  as  provided  by  said  title.  And  all  national  bank- 
ing associations  established  under  the  laws  of  the  United 
States  shall,  for  the  purposes  of  all  other  actions  by  or  against 
them,  real,  personal,  or  mixed,  and  all  suits  in  equity,  be 
deemed  citizens  of  the  states  in  which  they  are  respectively 

located." 

9*1  mrw  8*1 ;. 

The  latter  part  of  this  section  places  national  banks  on  the 
same  footing  as  individuals  of  other  corporations  with  respect  to 
the  right  to  sue  and  be  sued  in  the  Federal  courts.  There  must 
be  either  diversity  of  citizenship,  or  a  Federal  question  other- 
wise involved,  to  permit  suits  by  or  against  national  banks  under 
this  provision.19 

§  219.  Arising  under  the  Constitution.  Questions  too  nu- 
merous to  discuss  in  this  work,  arise  under  the  Federal  Consti- 
tution. 

§  10,  art.  1,  U.  8.  Const.  "K"o  state  shall  .  .  .  pass 
any  .  .  .  law  impairing  the  obligation  of  contracts 

••  20 

§  1,  art.  4,  U.  S.  Const.  "Full  faith  and  credit  shall  be 
given  in  each  state  to  the  public  acts,  records,  and  judicial 
proceedings  of  every  state  .  .  ."  21 

19  American  National  Bank  .v.  Tappan,  174  Fed.  431 ;   State  Nat.  Bank  v. 
Kuroka  Springs  Water  Co.  174  Fed.  827;   Continental  Nat.  Bank  v.  Buford, 
191  U.  S.  123,  48  L.  ed.  119,  24  Sup.  Ct.  Rep.  54;  and  other  cases  cited  in  5 
F.    S.    A.   p.    195. 

20  8  F.  S.  A.  pp.  748  to  889.  21  9  p.  S.  A.  pp.  141  to  157. 


§    220  FEDERAL    QUESTION GROUND    OF    JURISDICTION          127 

§  2,  art.  If,  U.  S.  Const.  "The  citizens  of  each  state  shall 
be  entitled  to  all  privileges  and  immunities  of  citizens  in  the 
several  states."  22 

x 

Pt.  §  1,  14th  Amendment  U.  8.  Const.  ".  .  .  no  state 
shall  make  or  enforce  any  law  which  shall  abridge  the  priv- 
ileges or  immunities  of  citizens  of  the  United  States ;  nor 
shall  any  state  deprive  any  person  of  life,  liberty,  or  prop- 
erty without  due  process  of  law ;  23  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws."  24 
' 

§  1,  15th  Amendment  U.  8.  Const.  "The  right  of  citizens 
of  the  United  States  to  vote  shall  not  be  denied  or  abridged 
by  the  United  States  or  by  any  state  on  account  of  race, 
color,  or  previous  condition  of  servitude."  25 

§  220.  As  a  Ground  of  Original  Jurisdiction. 

Cl  1,  §  1,  art.  3,  U.  8.  Const.  "The  judicial  power  of 
the  United  States,  shall  be  vested  in  one  Supreme  Court,  and 
in  such  inferior  court  as  Congress  may  from  time  to  time 
ordain  and  establish.  .  .  ." 

Cl.  1,  §  2,  art.  3,  U.  8.  Const.  "The  judicial  powers 
shall  extend  to  all  cases  in  law  and  equity,  arising  under 
this  Constitution,  the  laws  of  the  United  States,  and  treaties 
made,  or  which  shall  be  made,  under  their  authority ;  .  .  ." 

Under  the  foregoing  provisions  of  the  United  States  Constitu- 
tion, Congress  establishes  the  United  States  district  courts  as  the 
courts  of  original  jurisdiction  with  certain  limitations  as  to 
grounds  of  jurisdiction  and  as  to  the  amount  in  controversy.  One 
of  those  grounds  of  jurisdiction  is  the  existence  of  a  Federal 
question. 

Pt.  §  24,  Judicial  Code.  "The  district  courts  have  original 
jurisdiction  as  follows: 

First.  ".  .  .  where  the  matter  in  controversy  exceeds, 
exclusive  of  interest  and  costs,  the  sum  or  value  of  $3,000, 
and  (a)  arises  under  the  Constitution  or  laws  of  the  United 

22  9  F.  S.  A.  pp.  158  to  183.  23  9  F.  S.  A.  pp.  416  to  537. 

24  Ibid.  pp.  538  to  624.  25  9  F.  S.  A.  pp.  636-639. 


128         MONTGOMERY'S  MANUAL  OF  FEDEEAL  PROCEDURE     §  221 

States,  or  treaties  made,  or  which  shall  be  made,  under  their 
authority,  .  .  .  Provided,  hoivever,  That  the  foregoing 
provision  as  to  the  sum  or  value  of  the  matter  in  controversy 
shall  not  be  construed  to  apply  to  any  of  the  cases  mentioned 
in  the  succeeding  paragraphs  of  this  section.  .  .  ." 

§  221.  As  a  Ground  for  Removal.  Under  the  constitutional 
provision  quoted  in  the  preceding  section,  Congress  has  power  to 
provide  for  the  removal  of  suits  from  state  courts  to  the  Federal 
courts  when  such  courts  have  original  or  appellate  jurisdiction  in 
such  suits.26 

The  jurisdiction  on  removal  depends  upon  the  original  juris- 
diction in  the  district  court,  and  therefore  separate  consideration 
is  unnecessary,  except  in  so  far  as  the  general  subject  of  removal 
is  treated  in  chapter  10,  entitled,  "Removal  of  Causes — Jurisdic- 
tion and  Procedure." 

It  should  be  noted,  however,  that  under  the  last  part  of  §  28, 
Judicial  Code,  36  Stat.  at  L.  1094,  Comp.  St.  1911,  p.  141,  1912 
Supp.  F.  S.  A.  v.  1,  p.  145,  actions  based  on  Federal  "Employers' 
liability  law"  are  not  removable  although  the  district  courts  have 
original  jurisdiction  concurrent  with  that  of  the  state  courts  in 
that  kind  of  action. 

Pi.  §  28,  Judicial  Code,  36  Stat.  at  L.  1094,  1912  Supp. 
F.  S.  A.  v.  1,  p.  145.c    "Any  suit  of  a  civil  nature,  at  law 

26  Mayor,  etc.,  of  Nashville  v.  Cooper,  6  Wall.  247,  18  L.  ed.  851. 

c  Re-enacting  25  Stat.  at  L.  434,  Comp.  St.  1901,  p.  509,  4  F.  S.  A.  312, 
changing  the  words  "circuit  court"  to  "district  court,"  which  statute  is  re- 
pealed by  §  297,  Judicial  Code.  The  last  proviso  re-enacts  35  Stat.  at  L. 
66.  1909  Supp.  F.  S.  A.  585,  which  statute  is  repealed  by  §  297.  Judicial  Code. 

Fou Ik  v.  Gray,  120  Fed.  156;  Smith  v.  Lyon,  133  U.'  S.  315,  33  L.  ed.  635, 

10  Sup.  Ct.  Rep.  303;   In  re  Pennsylvania  *Co.  137  U.  S.  457,  34  L.  ed.  741, 

11  Sup.  Ct.  Rep.  143;   Hanrick  v.  Hanrick,  153  U.  S.  192,  38  L.  ed.  685,  14 
Sup.  Ct.  Rep.  835 ;  In  re  Cilley,  58  Fed.  977 ;  Gumbel  v.  Pitkin,  124  U.  S.  131, 
31  L.  ed.  374,  8  Sup.  Ct.  Rep/379. 

Suits  at  law  or  in  equity,  Western  Union  Teleg.  Co.  v.  Louisville  &  I.  R. 
Co.  et  al.  201  Fed.  932;  In  re  Silvies  River,  199  Fed.  495. 

Constitution,  laws,  or  treaties,  Anaconda  Copper  Mining  Co.  v.  Butte- 
Balaklava  Copper  Co.  200  Fed.  808. 

As  to  nonresidents,  see  Wind  River  Lumber  Co.  v.  Frankfort  Marine  Acci- 
dent &  Plate  Glass  Ins.  Co.  196  Fed.  340. 

As  to  separable  controversy,  In  re  Silvies  River,  199  Fed.  495. 

Diverse  citizenship,  Anaconda  Copper  Mining  Co.  v.  Butte-Balaklava  Cop- 
per Co.  200  Fed.  808. 

Remanding,  Rice  v.  Boston  &  M.  R.  R.  203  Fed.  580. 


§    223         FEDERAL    QUESTION GROUND    OF    JURISDICTION  129 

or  in  equity,  arising  under  the  Constitution  or  laws  of  the 
United  States,  or  treaties  made,  or  which  shall  be  made,  un- 
der their  authority,  of  which  the  district  courts  of  the  United 
States  were  given  original  jurisdiction  by  this  title,  which 
may  now  be  pending  or  which  may  hereafter  be  brought,  in 
any  state  court,  may  be  removed  by  the  defendant  or  de- 
fendants therein  to  the  district  court  of  the  United  States 
for  the  proper  district.  .  .  ." 

§  222.  Citizenship  Not  Material  in  Suits  Involving  a  Fed- 
eral Question  except  When  Affecting  Venue.  The  existence 
of  a  Federal  question  is  sufficient  to  sustain  jurisdiction  of  the 
Federal  court  independent  of  citizenship,  provided  the  requisite 
amount  or  value  is  involved  and  the  venue  properly  laid. 

Citizens  of  the  same  state  may  sue  each  other  in  the  Federal 
courts  if  a  Federal  question  is  involved.27 

Equity  Rule  25  requires  the  citizenship  and  residence  of  each 
party  to  be  set  out  in  the  bill.28  In  suits  based  on  a  Federal  ques- 
tion the  citizenship  and  residence  of  the  parties  is  immaterial  ex- 
cept in  transitory  actions  where  the  residence  of  the  defendant 
fixes  the  venue  of  the  action  under  §  51,  Judicial  Code. 

The  requirements  ef  the  rule  as  to  citizenship  and  residence  in 
suits  based  on  a  Federal  question  are  chiefly  for  the  sake  of  uni- 
formity and  to  identify  the  parties.  In  such  suits  of  a  local  nature, 
citizenship  and  residence  of  any  of  the  parties  are  otherwise  imma- 
terial. 

If  the  basis  of  the  Federal  court's  jurisdiction  is  diverse  citizen- 
ship as  well  as  a  Federal  question,  necessarily  a  proper  showing 
of  citizenship  is  essential. 

§  223.  Amount  Required  to  Be  in  Controversy.29  In  that 
part  of  §  24,  Judicial  Code,  quoted  in  §  220  above,  it  will  be  noted 
that,  in  cases  based  on  a  Federal  question,  the  matter  in  contro- 

27  San  Joaquin,  etc.,  River  Canal  Co.  v.   Stanislaus  County,  90  Fed.  520 ; 
Lund  v.  Chicago,  etc.,  R.  Co.  78  Fed.  385;  Jewett  v.  Whitcomb,  69  Fed.  417; 
United  States  Express  Co.  v.  Allen,  39  Fed.  712;  Ames  v.  Kansas,  111  U.  S. 
449,  28  L.  ed.  482,  4  Sup.  Ct.  Rep.  437;   Owings  v.  Norwood.  5  Cranch,  344, 
3  L.  ed.  120;  Patton  v.  Brady,  184  U.  S.  611,  46  L.  ed.  715,  22  Sup.  Ct.  Rep. 
493. 

28  §  892,  infra. 

29  "Amount  in  Controversy  as  Affecting  Jurisdiction,"  ch.  9,'  post. 

Montg. — 9. 


130         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  225 

versy,  exclusive  of  interest  and  costs,  must  exceed  the  sum  or  value 
of  $3,000,  except  in  certain  cases  arising  under  Federal  laws  enu- 
merated in  subdivisions  second  to  twenty-five  of  that  section,  or  if 
brought  by  the  United  States,  or  its  officers. 

To  make  diverse  citizenship  the  ground  of  jurisdiction,  the 
amount  in  controversy  must  always  exceed  $3,000,  exclusive  of 
interest  and  costs. 

Where  less  than  such  amount  is  involved  diverse  citizenship 
is  not  material ;  there  must  be  a  Federal  question  on  which  to  base 
jurisdiction. 

As  the  jurisdiction  on  removal  depends  on  the  original  juris- 
diction conferred  on  the  district  court,  the  amount  required  to 
be  in  controversy  on  removal  is  the  same  as  that  necessary  to  sus- 
tain the  case  if  originally  brought  in  the  Federal  court. 

§  224.  Question  Must  Appear  on  the  Face  of  the  Bill  in 
the  Federal  Court.  To  entitle  a  plaintiff  to  bring  a  suit  orig- 
inally in  the  United  States  district  court,  the  Federal  question 
must  appear  on  the  face  of  his  bill  as  a  part  of  his  cause  of  action.80 
It  must  be  real,  and  not  colorable  merely.81  It  must  be  essen- 
tial to  his  cause  of  action,  and  not  merely  in  anticipation  of  a  de- 
fense based  on  that  ground.32 

§  225.  How  Question  Must  Appear  in  a  State  Court  to 
Be  Removed  to  Federal  Court.  To  entitle  a  defendant  to  re- 
move a  case  from  the  state  court  to  the  United  States  district  court, 
the  Federal  question  must  appear  on  the  face  of  the  initial  plead- 
ing in  the  state  court.  The  defendant  cannot,  in  his  petition 
'}.  (I'L  sJT'oi  Lfniupsi 

30  City  R.  Co.  v.  Citizens'  Street  R.  Co.  166  U.  S.  557,  41  L.  ed.  1114,  17 
Sup.  Ct.  Rep.  653;  St.  Paul,  M.  &  M.  R.  Co.  v.  St.  Paul  &  N.  P.  R.  Co.  15  C. 
C.   A.   167,   68   Fed.   2;    New   Orleans  v.  New  Orleans   Water   Works,   142   U. 
S.  79,  35  L.  ed.  943,  12  Sup.  Ct.  Rep.  142:   Hamblin  v.  Land  Co.  147  U.  S. 
532,  37  L.  ed.  267,  13  Sup.  Ct.  Rep..  353:  St.  Louis,  etc..  R.  Co.  v.  State  of 
Missouri,  156  U.  S.  478,  39  L.  ed.  502,  15  Sup.  Ct.  Rep.  443. 

31  Tennessee  v.  Union,  etc.,  Bank,  152  U.  S.  454,  38  L.  ed.  511,  14  Sup.  Ct. 
Rep.  654.  and  other  cases  cited  in  4  F.  S.  A.  282. 

32  Florida  Central  R.  Co.  v.  Bell,  176  U.  S.  321,  44  L.  ed.  486,  20  Sup.  Ct. 
Rep.  399,  and  other  cases  cited  in  4  F.  S.  A.  283. 


§    226          FEDERAL    QUESTION GROUND    OF    JURISDICTION  131 

for  removal,  set  up  the  facts  supplementing-  plaintiff's  pleading 
so  as  to  show  a  Federal  question.33 

The  defendant,  however,  is  not  precluded  in  such  a  case  from  ob- 
taining the  determination  of  a  Federal  court  as  to  a  Federal  ques- 
tion involved  in  the  suit,  for  if  the  plaintiff's  pleading  does  not 
show  such  question,  the  defendant  may,  nevertheless,  set  up  the 
Federal  question  in  his  own  pleading,  and  thus  preserve  the  right 
of  review  by  the  Supreme  Court  of  the  United  States  on  writ  of 
error.  This  subject  is  treated  more  in  detail  in  chapter  11,  en- 
titled, "Removal  from  State  Court  of  Last  Eesort  to  United  States 
Supreme  Court  by  Writ  of  Error— Jurisdiction." 

§  226.  Raising  the  Issue  as  to  Federal  Question.        The 

want  of  a  Federal  question,  being  a  matter  of  jurisdiction,  may 
be  raised  under  Equity  Rule  29,  either  by  a  motion  to  dismiss  or 
in  the  answer  and  separately  heard,  and  in  an  action  at  law  by  the 
appropriate  defensive  pleading  provided  for  raising  jurisdictional 
questions  in  the  state  court, — generally  by  demurrer  if  the  defect 
appears  on  the  face  of  the  complaint,  or  by  plea  or  answer  if  it  does 
not  so  appear.  In  case  of  removal  the  objection  would  be  made 
in  a  motion  to  remand.  In  the  event  that  a  Federal  question  is 
properly  pleaded,  but  is  fraudulently  made  for  the  purpose  of  giv- 
ing jurisdiction  when  no  actual  Federal  question  is  involved  it 
would  be  set  up  in  the  answer  under  Equity  Rule  29  in  some  such 
form  as  follows : 

Defendant  further  answering  alleges  that  this  suit  does  not  really  and 
substantially  involve  a  controversy  within  the  jurisdiction  of  this  court  in 
that  this  suit  is  wholly  based  on  the  alleged  existence  of  a  Federal  question; 
that  the  allegations  in  plaintiff's  complaint  that  this  suit  is  dependent  (here 
state  allegations  mentioned  in  complaint  as  ground  of  Federal  jurisdiction), 
are  not  made  truly 'and  in  good  faith  but  are  stated  with  a  false  and  fraudu- 
lent purpose  of  imposing  upon  the  jurisdiction  of  this  court  and  are  there- 
fore fictitious  and  fraudulent. 

Wherefore  defendant  prays  that  the  suit  be  dismissed  or  remanded  with 
costs. 

33  Tennessee  v.  Union  &  Planters  Bank,  152  U.  S.  454,  38  L.  ed.  511,  14 
Sup.  Ct.  Rep.  654;  Chappell  v.  Waterworth,  155  U.  S.  102,  39  L.  ed.  85,  15  Sup. 
Ct.  Rep.  34:  Walker  v.  Collins,  1  C.  0.  A.  642,  50  Fed.  737,  8  C.  C.  A.  1,  59  Fed. 
70,  reversed  in  Walker  v.  Collins,  167  U.  S.  58,  42  L.  ed.  76,  17  Sup.  Ct.  Rep. 
738 ;  Mayo  v.  Dockery,  108  Fed.  897. 


CHAPTER  8. 

DIVERSE    CITIZENSHIP. 

Sec. 

230.  In  General. 

231.  What  Is  Citizenship. 

232.  Territorial  and  District  of  Columbia  Citizens  Are  Not  Included. 

233.  States  and  Territories  Are  Not  Citizens. 

234.  Corporations. 

235.  Joint  Stock  Companies. 

236.  Partnerships. 

237.  National  Banks. 

238.  Married  Women. 

239.  Personal  Representatives. 

240.  Trustees. 

241.  Guardians. 

242.  Aliens. 

243.  Indians. 

244.  Term    "Citizen"    Collective. 

245.  Change   of   Domicil   after   Suit  Commenced. 

246.  Change  of  Citizenship  or  Transfer  of  Subject-Matter  to  Give  Jurisdiction. 

247.  Shifting  Parties  to  Create  Diversity. 

248.  Venue  as  Affecting  Jurisdiction  Based  on  Diverse  Citizenship. 

249.  Issue  of  Citizenship — How   Raised. 

250.  When  Want  of  Diversity  Appears  on  the  Trial. 

§  230.  In  General. 

PL  §  24,  Judicial  Code?  36  Stat.  at  L.  1091,  Comp.  St. 
1911,  p.  135,  1912  Supp.  F.  8.  A.  v.  1,  p.  139.  "The  dis- 
trict courts  shall  have  original  jurisdiction  "as  follows: — 

"First.  Of  all  suits  of  a  civil  nature,  at  common  law  or 
in  equity,  .  .  .  where  the  matter  in  controversy  exceeds, 
exclusive  of  interest  and  costs,  the  sum  or  value  of  three 
thousand  dollars  and  .  .  .  (b)  is  between  citizens  of 
different  states,  or  (c)  is  between  citizens  of  a  state  and 
foreign  states,  citizens  or  subjects,  .  .  ." 

«•  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»,  ante,  §  194. 

132 


§    231  DIVERSE    CITIZENSHIP  133 

Ft.  §  51,  Judicial  Code?  36  8 tat.  at  L.  1101,  Comp.  St. 
1911,  p.  150,  1912  Supp  F.  8.  A.  v.  1,  p.  153.  ".  .  .  but 
where  the  jurisdiction  is  founded  only  on  the  fact  that  the 
action  is  between  citizens  of  different  states,  suit  shall  be 
brought  only  in  the  district  of  the  residence  of  either  the 

plaintiff  or  the  defendant." 

• 

It  will  be  seen  from  the  above  quotations  that  in  suits  based 
on  diversity  of  citizenship  that  (1)  the  matter  in  controversy 
must  exceed,  exclusive  of  interest  and  costs,  the  sum  or  value  of 
three  thousand  dollars;  (2)  that  the  controversy  must  be  between 
citizens  of  different  states  or  between  citizens  of  a  state  and 
foreign  states,  citizens,  or  subjects;  and  (3)  that,  where  the  fact 
that  the  action  is  between  citizens  of  different  states  is  the  sole 
ground  of  jurisdiction,  the  action  should  be  brought  in  the  district 
of  the  residence  of  either  the  plaintiff  or  the  defendant. 

The  existence  of  a  Federal  question  in  these  cases  is  imma- 
terial except  as  bearing  on  the  question  of  venue,  which  in  ac- 
tions not  local  should  be  in  the  district  of  the  residence  of  defend- 
ant where  both  grounds  of  jurisdiction  exist. 

Where  there  is  a  Federal  question  of  such  character  that  the 
amount  in  controversy  is  not  material  and  the  suit  involves  less 
than  three  thousand  dollars,  then  the  fact  that  there  is  a  diver- 
sity of  citizenship  is  immaterial  because  the  amount  in  contro- 
versy will  not  support  diversity  of  citizenship  as  a  ground  of 
Federal  jurisdiction. 

Where  diversity  of  citizenship  is  a  sole  ground  of  jurisdiction, 
the  existence  of  a  proper  diversity  and  a  proper  amount  in  con- 
troversy are  jurisdictional,  and  cannot  be  waived.  The  matter  of 
venue  is  not  jurisdictional  in  the  same  sense,  but  may  defeat  the 
action  if  timely  objection  be  made  by  the  opposing  party. 

§  231.  What  Is  Citizenship.  Citizenship  is  residence  with- 
in a  particular  state  with  a  bona  fide  intention  that  such  residence 
shall  be  permanent.  The  residence  and  intention  together  con- 

b  For  Annotation  of  this  §  51,  Judicial  Code,  see  footnote  a,  ante.  §  161. 


134         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  232 

stitute  what  is  known  as  domicil.1  Accordingly  the  mere  aver- 
ment of  residence,  which  may  be  transient  or  with  the  expecta- 
tion of  not  remaining,  is  not  the  equivalent  of  the  averment  of 
citizenship  for  the  purpose  of  supporting  jurisdiction  in  the  Fed- 
eral court.* 

This  ruling  has  been  held  to  be  unaffected  by  the  definition  of 
citizenship  as  contained  in  the  14th  Amendment  of  the  Consti- 
tution of  the  United  States,  wherein  it  is  declared  that  "all  per- 
sons born  or  naturalized  in  the  United  States  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the 
state  wherein  they  reside.3 

§  232.  Territorial  and  District  of  Columbia  Citizens  Are 
Not  Included.  The  citizenship  must  be  of  that  kind  that  identi- 
fies itself  with  a  particular  state.  To  be  a  citizen  of  the  United 
States,  and  not  of  some  state,  is  not  enough.*  Territorial  and 
District  of  Columbia  citizens  are  not  citizens  of  a  state,  so  as  to 
base  Federal  jurisdiction  on  the  ground  of  diverse  citizenship.5 
Thus  a  citizen  and  resident  of  Indian  territory  against  a  citizen 
of  a  state  6  and  an  action  between  state  citizens  and  citizens  of 
Porto  Rico  do  not  present  a  diversity  of  citizenship.7 

On  the  ground  of  diverse  citizenship  the  citizen  of  a  territory 
cannot  sue  a  citizen  of  a  state  in  the  Federal  courts  and  vice  versa,9 

1  Butler  v.   Farnsworth,   4   Wash.   101,   4   Fed.   Cas.   No.   2,240;    Morris   v. 
Gilmer,  129  U.  S.  315,  32  L.  ed.  690,  9  Sup.  Ct.  Rep.  289 ;  Mitchell  v.  United 
States,  21  Wall.  350,  22  L.  ed.  584;  Marks  v.  Marks,  75  Fed.  324;  Doyle  v. 
Clark,  1  Flipp.  536,  7  Fed.  Cas.  No.  4,053. 

2  Home  v.  George  H.  Hammond  Co.  155  U.  S.  393,  39  L.  ed.  197,  15  Sup.  Ct. 
Rep.  167  ;  Wolfe  v.  Insurance  Co.  148  U.  S.  389,  37  L.  ed.  493,  13  Sup.  Ct.  Rep. 
602;   Menard  v.  Goggan,  121  U.  S.  253,  30  L.  ed.  914,  7  Sup.  Ct.  Rep.  873; 
Everhart   v.   Huntsville   Collese,    120   U.   S.   223,   30   L.   ed.   623.    7    Sup.   Ct. 
Rep.  555;  Grace  v.  Insurance  Co.  109  U.  S.  278,  27  L.  ed.  932,  3  Sup.  Ct.  Rep. 
207 ;  Brown  v.  Keene,  8  Pet.  112,  8  L.  ed.  885 ;  Turner  v.  Bank,  4  Ball.  8,  1  L. 
ed.  718. . 

3  .Marks  v.  Marks,  75  Fed.  324 ;  Shaw  v.  Mining  Co.  145  U.  S.  444,  36  L.  ed. 
768,  12  Sup.  Ct.  Rep.  935;  Anderson  v.  Watt,  138  U.  S.  694,  34  L.  ed.  1078, 
11  Sup.  Ct.  Rep.  449. 

4  Prentiss  v.  Brennan,  2  Blatchf.  162,  19  Fed.  Cas.  No.  11,385. 

6  Johnson  v.  Bunker  Hill  Co.  46  Fed.  417;  Hooe  v.  Jameson,  166  U.  S. 
395,  41  L.  ed.  1049,  17  Sup.  Ct.  Rep.  596,  and  other  cases  cited  in  4  F.  S.  A. 
p.  290. 

6  Kansas  City  S.  R.  Co.  v.  McGinty,  76  Ark.  356,  88  S.  W.  1001. 

7Healy  v.  McCormick,  157  Fed.  318. 

8  Johnson  v.  Bunker  Hill,  etc.,  46  Fed.  417. 


§    234  DIVERSE    CITIZENSHIP  135 

nor  can  a  citizen  of  the  District  of  Columbia  sue  a  citizen  of  a 
state  in  the  Federal  courts.9 

§  233.  States  and  Territories  Are  Not  Citizens.  "A  state 
is  not  a  citizen  of  any  state,  and,  under  the  judiciary  acts  of  the 
United  States,  it  is  firmly  settled  that  a  suit  between  a  state  and  a 
citizen  or  corporation  of  another  state  is  not  between  citizens  of 
different  states;  and  that  in  such  cases  the  circuit  courts  (now 
district  courts)  of  the  United  States  have  no  jurisdiction  of  it  un- 
less it  arises  under  the  Constitution,  laws,  or  treaties  of  the  United 
States."  10 

The  District  of  Columbia  and  the  territories  have  been  held 
not  citizens  so  as  to  create  diversity  of  citizenship.11 

§  234.  Corporations.  Corporations,  though  artificial  per- 
sons, are  treated  for  the  purpose  of  determining  diverse  citizen- 
ship as  citizens  of  the  state  under  which  they  are  created.12 

A  corporation  does  not  become  a  citizen  of  another  state  than 
that  of  its  incorporation  by  transacting  business  and  having  an 
office  therein,  or  agreeing  as  a  condition  of  being  permitted  to 
transact  business  in  such  other  state  that  it  may  be  sued  therein.13 

Where  a  corporation  is  incorporated  in  two  states,  it  is  a  citizen 
of  both  states  for  jurisdictional  purposes.14 

Corporations  of  different  states  consolidated  in  each  of  the  states 
is  a  citizen  of  each.15 

9Seddon  v.  Virginia,  etc.,  36  Fed.  8,  1  L.R.A.  108;  Hepburn  v.  Ellzey,  2 
Cranch,  445.  2  L.  ed.  332;  New  Orleans  v.  Winter,  1  Wheat.  91,  4  L.  ed.  44. 

10  State  of  Indiana,  etc.,  v.  Alleghany  Oil  Co.  85  Fed.  870.     See  also  Ames  v. 
Kansas,  111  U.  S.  449,  28  L.  ed.  482,  4  Sup.  Ct.  Rep.  437 ;  Germania  Ins.  Co. 
v.  Wisconsin,  119  U.  S.  473,  30  L.  ed.  461,  7  Sup.  Ct.  Rep.  260;   Postal  Tel. 
Cable  Co.  v.  Alabama,  155  U.  S.  482,  39  L.  ed.  231,  15  Sup.  Ct.  Rep.  192;  State 
v.  Tolleston  Club,  etc.,  53  Fed.  18;   Ayer,  etc.,  Tie  Co.  v.  Kentucky,  202  U.  S. 
409,  6  Ann.  Cas.  205,  26  Sup.  Ct.  Rep.  679,  50  L.  ed.  1082 ;  O'Conor  v.  Texas, 
202  U.  S.  501,  26  Sup.  Ct.  Rep.  726,  50  L.  ed.  1120;  Southern  R.  Co.  v.  State, 
165  Incl.  613,  75  N.  E.  272;  Darnell  v.  State.  174  Ind.  143,  90  N.  E.  769;  Ex 
parte  Nebraska,  209  U.  S.  436,  28  Sup.  Ct.  Rep.  581,  52  L.  ed.  876. 

11  Johnson  v.  Bunker  Hill,  etc.,  46   Fed.  417;   Mexwell  v.  Federal  Gold  & 
Copper  Co.  155  Fed.  110,  83  C.  C.  A.  570. 

12  Barrow  Steamship  Co.  v.  Kane,  170  U.  S.  100,  42  L.  ed.  964,  18  Sup.  Ct. 
Rep.  526. 

13  Baltimore,  etc.,   Co.  v.   Koontz,   104   U.  S.  5,  26  L.   ed.   643;   St.  Louis, 
etc.,  R.  Co.  v.  Quigley,  21  How.  202,  16  L.  ed.  73. 

i*  Memphis,  etc.,  R.  Co.  v.  Alabama,  107  U.  S.  581,  27  L.  ed.  518,  2  Sup.  Ct. 
Rep.  432. 

15  Baldwin  v.  Chicago,  etc.,  R.  Co.  86  Fed.  167. 


130         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  234 

A  municipal  corporation  is  a  citizen  of  the  state  creating  it 
the  same  as  a  private  corporation.16 

Because  a  corporation  is  a  citizen  of  the  state  wherein  it  is 
incorporated,  the  allegation  of  citizenship  may  read : 

Company   a   corporation,   organized 


and  existing  under  the  laws  of  the  state  of 

with  its  principal  place  of  business  in  the  county  of  - 

said  state." 

It  has  been  held  that  the  following  statements  were  sufficient 
on  which  to  base  diverse  citizenship: 

"Foreign  corporation  formed  under  and  created  by  the 
laws  of  the  state  of  New  York."  17 

"A  corporation  organized  and  domiciled  in  the  state  of 
New  York."  18 

"A  body  corporate  by  an  act  of  the  general  assembly  of 
Maryland.'"19 

"A  body  corporate  in  the  state  of  Maryland  incorporated 
by  a  law  of  the  general  assembly  of  Maryland." 

"The  Covington  Drawbridge  Company  of  Covington  is  a 
corporation  of  the  state  of  Indiana."  21 

"Organized  under  and  pursuant  to  the  laws  of  the  state  of 
New  Jersey."  22 

The  following  averments  were  held  insufficient: 

"A  body  politic  in  the  law  of  and  doing  business  in  the 
state  of  California."  2S 

"A  corporation  duly  established  by  law  and  having  its 
principal  place  of  business  at  Boston,  in  the  state  of  Massa- 
chusetts." ** 

"Doing  business  in  the  state  of  Iowa." 
Other  illustrations  will  be  found  in  4  F.  S.  A.  pp.  296,  297. 

i6Ysleta  v.  Canada,  67  Fed.  6;  Cowles  v.  Mercer  Co.  7  Wall.  121,  19  L.  ed. 
87. 

17  United  States  Express  Co.  v.  Kountze,  8  Wall.  342,  19  L.  ed.  457. 
»  Ward  v.  Blake  Mfg.  Co.  56  Fed.  437,  5  C.  C.  A.  538. 

19  Marshall  v.  Baltimore,  etc.,  R.  Co.  16  How.  314,  14  L.  ed.  953. 

20  Covington,  etc.,  Co.  v.  Shepherd,  21  How.  112,  16  L.  ed.  38;  Philadelphia, 
etc..  R.  Co.  v.  Quigley,  21  How.  202.  16  L.  ed.  73. 

21  Covington  Drawbridge  Co.  v.  Shepherd,  21  How.  112,  16  L.  ed.  38. 

22  Block  v.  Standard  Distilling  Co.  95  Fed.  978. 

23  Pennsylvania  v.  Quicksilver  Co.  10  Wall.  553,  19  L.  ed.  998. 

24  New  York,  etc.,  Co.  v.  Hyde,  57   Fed.  188. 

26  Brock  v.  North  Western  Fuel  Co.   130  U.  S.  342,  32  L.  ed.  905,  9  Sup. 
Ct.  Rep.  552. 


§    236  DIVERSE    CITIZENSHIP  137 

A  corporation  organized  under  the  laws  of  a  foreign  country  is 
an  alien.26 

•>In  Robertson  v.  Scottish  Union  etc.,  Insurance  Company,  68 
Fed.  173,  the  court  held  that  the  allegation  in  a  petition  for 
removal  of  a  cause  to  a  Federal  court,  that  the  defendant  is  "a 
company  duly  chartered  and  incorporated  under  the  laws  of  Great 
Britain,"  is  a  sufficient  statement  of  the  citizenship  of  such  de- 
fendant to  give  the  Federal  court  jurisdiction.  In  Dunde  Mort- 
gage etc.,  Investment  Co.  v.  School  District,  21  Fed.  705,  held 
that  an  allegation  that  plaintiff  is  a  foreign  corporation  duly  incor- 
porated under  the  laws  of  Great  Britain,  in  legal  effect  is  the  same 
as  saying  that  it  is  a  subject  of  Great  Britain,  and  is  sufficient. 

§  235.  Joint  Stock  Companies.  Joint  stock  companies  par- 
take both  of  the  nature  of  partnerships  and  of  corporations,  and 
accordingly  there  has  been  a  conflict  of  opinion  as  to  whether  the 
rule  governing  partnerships,  or  the  rule  governing  corporations, 
should  apply  to  these  companies.  It  is  now  held  that  joint 
stock  companies  do  not  come  under  the  rule  governing  corpora- 
tions, but  that  the  citizenship  of  the  company  depends  upon  the 
citizenship  of  the  members.27  An  allegation  that  certain  com- 
pany was  "a  joint  stock  company  organized  under  and  by  virtue 
of  a  law  of  the  state  of  New  York,  and  which  said  company  is 
authorized  by  the  laws  of  the  state  of  New  York  to  maintain  and 
bring  suits  in  the  name  of  its  president,  for  or  on  account  of  any 
right  of  action  accruing  to  said  company,  and  a  citizen  of  the  state 
of  New  York,"  was  fatally  defective  in  that  it  did  not  state  that 
the  company  was  a  corporation.28 

§  236.  Partnerships.  A  partnership  is  not  a  legal  entity  so 
as  to  have  a  citizenship  of  itself,  but  Federal  jurisdiction  of  suits 

26  Railroad  Co.  v.  Koontz,  104  U.  S.  5,  26  L.  ed.  643;    Steamship  Co.  v. 
Tugman,  106  U.  S.  118,  27  L.  ed.  87. 

27  Thomas  v.  Ohio  State  University,  195  U.  S.  211,  49  L.  ed.  164,  25  Sup. 
Ct.  Rep.  24;   Saunders  v.  Adams  Express  Co.  136  Fed.  494. 

28  Chapman  v.  Barney,  129  U.  S.  079,  32  L.  ed.  800,  9  Sup.  Ct.  Rep.  426. 


138         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  238 

by  or   against   partnerships   and  voluntary   associations   depend 
upon  the  citizenship  of  the  members  composing  them.29 

§  237.  National  Banks. 

PL  subd.  16,  §  24,  Judicial  Code*  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  138,  1912  Supp.  F.  8.  A.  v.  1,  p.  140. 
".  .  .  and  all  national  banking  associations  established 
under  the  laws  of  the  United  States  shall,  for  the  purposes 
of  all  other  actions  by  or  against  them,  real,  personal,  or 
mixed,  and  all  suits  in  equity,  be  deemed  citizens  of  the  state 
in  which  they  are  respectively  located." 

The  above-quoted  provision  makes  jurisdiction  as  to  national 
banks,  except  when  the  United  States  or  a  Federal  officer  is  a  party, 
the  same  as  any  other  corporation.30 

§  238.  Married  Women.  The  general  rule  is  that  the 
domicil  of  the  husband  is  the  domicil  of  the  wife.  But  the 
rule  does  not  apply  when  the  wife  is  abandoned.31  When  an  alien 
female  marries  a  citizen,  she  becomes  a  citizen.32 

§  3,  Act  March  2,  1907,  ch.  2534,  34  Stat.  at  L.  1228, 
Comp.  St.  1911,  p.  491,  1909  F.  S.  A.  Supp.  69.  "That 
any  American  woman  who  marries  a  foreigner  shall  take  the 
nationality  of  her  husband.  At  the  termination  of  the  mari- 
tal relation  she  may  resume  her  American  citizenship,  if 
abroad,  by  registering  as  an  American  citizen  within  one 
year  with  a  consul  of  the  United  States,  or  by  returning  to 
reside  in  the  United  States,  or,  if  residing  in  the  United 
States  at  the  termination  of  the  marital  relation,  by  con- 
tinuing to  reside  therein." 

29  Adams  v.  May,  27  Fed.  908;  Commonwealth  v.  Chicago  R.  Co.  48  Fed. 
177;  Sawyer  v.  Switzerland  Marine  Ins.  Co.  14  Blatchf.  452,  Fed.  Cas.  No. 
12,408. 

39  First  Nat.  Bank  v.  Forrest,  40  Fed.  705 ;  George  v.  Wallace,  135  Fed.  286, 
G8  C.  C.  A.  40;  American  Nat.  Bank  v.  Tappan,  174  Fed.  431;  Continental 
Nat.  Bank  v.  Buford,  191  U.  S.  123,  48  L.  ed.  119,  24  Sup.  Ct.  Rep.  54,  and 
other  cases  cited  in  5  F.  S.  A.  p.  195. 

31  Thompson  v.  Stalmann,  139  Fed.  93;   Watertown  v.  Greaves,  56  L.R.A. 
865,  112  Fed.  183,  50  C.  C.  A.  172. 

32  §  1994,  R.  S.,  1  F.  S.  A.  786. 

c  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  b,  ante,  our  §  194. 


§    240  DIVERSE    CITIZENSHIP  139 

§  4,  Act  March  2,  1907,  ch.  2534,  34  Stat.  at  L.  1228, 
Comp.  St.  1911,  p.  491,  1909^  F.  8.  A.  Supp.  69.  "That 
any  foreign  woman  who  acquires  American  citizenship  by 
marriage  to  an  American  shall  be  assumed  to  retain  the  same 
after  the  termination  of  the  marital  relation  if  she  continue 
to  reside  in  the  United  States,  unless  she  makes  formal  re- 
nunciation thereof  before  a  court  having  jurisdiction  to  nat- 
uralize aliens,  or  if  she  resides  abroad  she  may  retain  her 
citizenship  by  registering  as  such  before  a  United  States 
consul  within  one  year  after  the  termination  of  such  marital 
relation." 


§  239.  Personal  Representatives.  "The  test  of  jurisdic- 
tional  authority  is  to  be  found  in  the  citizenship  of  the  parties  who 
are  actually  before  the  court;  and,  if  either  of  such  parties  sue 
or  is  sued  in  a  representative  capacity,  his  own  citizenship,  and 
not  the  citizenship  of  him  whom  he  represents,  is  the  determining 
factor."  In  a  suit  against  the  administrator,  there  must  be  di- 
versity of  citizenship  between  him  and  the  complainant ;  and 
the  fact  that  his  decedent  possessed  the  requisite  citizenship  at 
the  time  of  the  transactions  giving  rise  to  the  suit,  and  at  the 
time  of  his  death,  is  immaterial.83  It  is  not  material  in  what  state 
letters  testamentary  or  of  administration  are  granted.34 

§  240.  Trustees.  "If  a  trustee,  by  his  citizenship,  is  quali- 
fied to  sue  in  a  Federal  court,  the  citizenship  of  the  beneficiary 
under  the  trust  is  wholly  unimportant.  If  the  trustee  is  disquali- 
fied by  reason  of  citizenship  in  the  same  state  as  that  of  the  nec- 
essary defendants,  the  suit  cannot  be  entertained,  even  though 
the  beneficiary  might  be  qualified.  The  jurisdiction  is  to  be 
determined,  in  all  such  instances,  by  the  citizenship  of  the  trustee. 
Neither  is  the  rule  changed  by  the  refusal  of  the  trustee  to  act. 
His  refusal  may  authorize  the  beneficiary  to  exhibit  a  bill  against 
the  debtor  to  obtain  a  decree  of  a  foreclosure.  But,  if  the  legal 
title  to  the  property  conveyed  in  trust  be 'in  the  trustee,  then  the 

33  Bangs  v.  Loveridge,  60  Fed.  963;  Dodges  v.  Perkins,  Fed.  Cas.  No.  3,954, 
4  Mason,  435;   Susquehanna,  etc.,  R.  Co.  v.  Blatchford,  11  Wall.  172,  20  L. 
ed.  179. 

34  Brisenden  v.  Chamberlin,  53  Fed.  310;  Hess  v.  Reynolds,  113  U.  S.  76, 
28  L.  ed.  927,  5  Sup.  Ct.  Rep.  377. 


140         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  242 

court  cannot  grant  any  relief  until  the  trustee  was  made  a  party 
defendant,85 

But  where  the  trustee  is  a  naked  trustee,  and  his  sole  duty  is 
to  hold  the  property  until  defeasance,  with  no  power  over  it,  and 
no  right  or  duty  to  foreclose,  the  rule  does  not  apply.88  A  non- 
resident cestui  que  trust  may  sue  in  the  Federal  court,  when  the 
trustee  refuses  to  sue,  by  making  the  trustee  a  party  defendant, 
where  he  is  a  resident  of  the  same  state  as  the  other  defendants.87 

§  241.  Guardians.  Where  an  infant  sues  or  defends  by  a 
guardian  or  next  friend,  it  has  been  held  that  the  Federal  juris- 
diction depends  on  the  citizenship  of  the  infant.38  The  domicil 
of  the  infant  is  that  of  its  parents ;  if  the  father  is  living,  that  of 
the  father;  if  dead,  that  of  the  mother.  Where  the  parents  are 
divorced,  the  domicil  will  be  governed  by  the  domicil  of  the  parent 
to  whom  the  infant  has  been  awarded.39 

It  has  been  held  that  when  the  law  of  the  state  of  the  forum 
gives  the  general  guardian  a  right  to  sue  in  his  own  name  as  such 
guardian,  he  is  to  be  treated  as  the  party  plaintiff  so  far  as  Federal 
jurisdiction  is  concerned.40 

§  242.  Aliens.  Aliens  are  citizens  or  subjects  of  foreign 
states,  and  the  district  courts  are  given  jurisdiction,  when  the  con- 
troversy is  between  a  citizen  or  citizens  of  a  state  and  a  citizen  or 
citizens  and  subjects  of  foreign  state.41  An  alien  may  sue  a  citizen 
or  a  citizen  may  sue  an  alien.42 

35Shipp  v.  Williams,  62  Fed.  4,  10  C.  C.  A.  247;  Gardner  v.  Brown,  21 
Wall.  36,  22  L.  ed.  527;  McRea  v.  Bank,  19  How.  376,  15  L.  ed.  688:  Knapp 
v.  Railroad  Co.  20  Wall.  117,  22  L.  ed.  328;  Watson  v.  Asbury  Park  Co. 
73  Fed.  1. 

36  D.  A.  Tompkins  Co.  v.  Catawba  Mills  et  al.  82  Fed.  780. 

37  Einstein  v.  Georgia  S.  V.  R.  Co.  120  Fed.  1009;  Omaha  Hotel  Co.  v.  Wade, 
97  U.  S.  13,  24  L.  ed.  917;  Reinach  v.  Atlanta  G.  W.  R.  Co.  58  Fed.  38. 

38Woolridge  v.  McKanna,  8  Fed.  650.  In  re  McClean,  26  Fed.  49;  Wilcox- 
sen  v.  Chicago  R.  Co.  116  Fed.  444;  Voss  v.  Neineber,  68  Fed.  947;  Wiggins 
v.  Bethune,  29  Fed.  51. 

39  Marks   v.   Marks,   75   Fed.   325 ;    Toledo  Traction   Company   v.   Cameron, 
137  Fed.  49,  69  C.  C.  A.  28. 

40  Mexican  C.  R.  Co.  v.  Eckman,  187  U.  S.  429,  23  Sup.  Ct.  Rep.  211,  47  L. 
ed.  245. 

«Prentiss  v.  Brennan,  2  Blatchf.  162,  19  Fed.  Cas.  No.   11,385. 
«Mossman  v.  Higginson,  4  Dall.  12,  1  L.  ed.  720;   Piquiqnot  v.  R.  R.  Co. 
16  How.  104,  14  L.  ed.  863;  Sherwood  v.  Newport,  etc.,  Co.  55  Fed.  5. 


§    244  DIVERSE    CITIZENSHIP  141 

In  this  class  of  cases  as  in  suits  between  citizens  of  different 
states,  the  citizenship  of  parties  on  one  side  of  the  controversy 
must  be  attached  to  a  particular  state  or  states  with  an  alien  on  the 
otfier  side.43  The  bare  allegation  that  the  opposing  party  is  an 
alien  is  not  sufficient.  It  must  be  alleged  that  he  is  a  subject  or 
citizen  of  some  one  foreign  state.44  Federal  courts  have  no  juris- 
diction of  suits  between  aliens  where  no  Federal  question  is  in- 
volved either  alone  or  by  joining  citizens.45 

A  description  of  plaintiff  as  "a  citizen  of  London,  England," 
is  not  a  sufficient  averment  that  plaintiff  is  a  citizen  of  Great 
Britain.46 

The  declaration  may  be  amended  to  show  that  the  plaintiff  was 
an  alien  when  the  suit  was  commenced,  instead  of  a  citizen  as  al- 
leged.47 

§  243.  Indians.  Indians  are  neither  citizens  nor  aliens.  An 
Indian  residing  within  the  United  States  is  not  "a  foreign  citizen 
or  subject."  M  A  member  of  an  Indian  tribe  maintaining  tribal 
relations  is  not  a  citizen  of  the  United  States,  nor  of  the  state  of 
his  residence,  unless  he  has  been  naturalized  in  some  manner.49 
A  child  deriving  citizenship  through  its  negro  mother,  though  with 
an  Indian  father,  is  a  citizen  for  the  purpose  of  jurisdiction.53 

§  244.  Term  "Citizen"  Collective.  The  word  "citizen,"  as 
used  in  the  statute,  is  used  in  a  collective  sense,  and  means  all 
parties  on  one  side  of  a  suit.  ''While  the  designation  of  a  party 
'plaintiff'  or  'defendant'  was  in  the  singular  number,  it  was  in- 
tended to  embrace  all  persons  who  were  on  one  side,  however  nu- 
merous, so  that  distinct  interest  must  be  represented  by  persons  all 

43picquet  v.  Swan,  5  Mason,  35,  19  Fed.  Gas.  No.  11,134. 

44  Wilson  v.  City  Bank,  3  Sumn.  422,  30  Fed.  Cas.  No.  17,597. 

45  Johnson  v.  Accident  Ins.  Co.  of  North  America,  35  Fed.  376;  Hodgson  v. 
Bower  Bank,  5  Cranch,  304,  3  L.  ed.  108;  Rateau  v.  Bernaurd,  3  Blatchf.  2444. 
20  Fed.  Cas.  No.  11,579;  Pooley  v.  Luco,  72  Fed.  561. 

«  Stuart  v.  Easton,  156  U.  S.  46,  39  L.  ed.  341,  15  Sup.  Ct.  Rep.  268. 
47  Betzoldt  v.  American  Ins.  Co.  47  Fed.  705. 
48Karrahoo  v.  Adams,  1  Dill.  344,  14  Fed.  Cas.  No.  7,614. 
49  Paul  v.  Chilsoquie,  70  Fed.  401. 

&OAlberty  v.  United  States,  162  U.  S.  499,  40  L.  ed.  1051,  16  Sup.  Ct.  Rep. 
864. 


142         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  245 

of  whom  were  entitled  to  sue  or  were  liable  to  be  sued,  in  the 
Federal  court.61 

The  reason  for  this  is  apparent  when  it  is  remembered  that 
the  original  intent  of  making  diverse  citizenship  a  ground  of 
Federal  jurisdiction  was  to  furnish  an  impartial  tribunal  for  the 
determination  of  controversies  betAveen  such  parties.  If  a  citizen 
of  a  state  is  opposed  to  a  citizen  of  the  same  state,  presumably 
justice  would  be  given  in  the  state  court  to  its  own  citizens,  and 
the  joinder  of  nonresidents  on  one  side  or  the  other  would  not 
affect  the  case. 

The  Federal  court's  jurisdiction  is  limited,  and  if  it  cannot 
take  jurisdiction  of  a  case  between  citizens  of  the  same  state,  the 
mere  fact  that  there  is  diverse  citizenship  as  to  other  parties  would 
not  confer  jurisdiction.  It  must  appear  that  every  party  on  one 
side  of  the  action  is  a  citizen  of  a  different  state  from  every 
party  on  the  other  side.52  If  two  causes  of  action  are  set  out,  di- 
versity must  appear  in  both.63  The  same  rule  applies  in  suits 
between  citizens  and  aliens.  All  the  necessary  parties  on  one 
side  must  be  citizens  of  a  state  and  all  on  the  other  side  must 
have  citizenship  otherwise.64 

§  245.  Change  of  Domicil  after  Suit  Commenced.  A 

change  of  citizenship  after  the  suit  is  commenced  will  have  no 
effect  on  the  jurisdiction  of  the  court,  where  the  parties  were  cit- 
izens of  different  states  at  the  commencement  of  the  suit.65  Nor 
will  an  assignment  of  the  cause  of  action  after  the  suit  is  begun, 

51  Saginaw   Gaslight    Company   v.    City   of   Saginaw,   28    Fed.   529;    Straw- 
bridge  v.  Curtiss,  3  Cranch  267,  2  L.  ed.  435;  Coal  Co.  v.  Blatchford,  11  Wall. 
172,  20  L.  ed.  179. 

52  Mexico  C.  R.  Co.  v.  Pinkney,  149  U.  S.  194,  13  Sup.  Ct.  Rep.  859,  37  L. 
ed.   699;    Anderson   v.  Bassman,   140   Fed.   10,   11;    Penn.   Iron   Co.   v.   Stone, 
121  U.  S.  633,  7  Sup.  Ct.  Rep.  1010,  30  L.  ed.  1020. 

58  Howe  &  D.  Co.  v.  Haugan,  140  Fed.  184-5;  King  v.  Islander,  133  Fed. 
416. 

54  Tracy   v.  Morel,   88   Fed.   801;    Sawyer   v.   Switzerland   Marine   Co.   Fed. 
Cas.  No.  12,408,  14  Blatchf.  452;  Ex  parte  Girard,  3  Wall.  Jr.  265,  Fed.  Cas. 
No.  5,457. 

55  Pacific  Mut.  Life  Ins.  Co.  v.  Tompkins,   101  Fed.  539,  41  C.  C.  A.  488; 
Conally  v.  Taylor,  2   Pet.   556,   7   L.  ed.  518;    Anderson  v.  Watt,   138   U.   S. 
094,  11  Sup.  Ct.  Rep.  449,  34  L.  ed.  1078;  Morgan  v.  Morgan,  2  Wheat.  297, 
4  L.  ed.  244.    See  also  cases  cited  4  F.  S.  A.  292. 


§    246  DIVERSE    CITIZENSHIP  143 

whereby  the  parties  become  citizens  of  the  same  state,  affect  the 
jurisdiction  of  the  court  once  obtained.56. 

§  246.  Change  of  Citizenship  or  Transfer  of  Subject-Mat- 
ter  to  Give  Jurisdiction.56*  If  a  citizen  removes  from  one  state 
to  another  in  order  to  prosecute  suits  in  the  courts  of  the  United 
States,  provided  the  removal  be  real,  the  motive  of  the  act  cannot 
be  inquired  into.57  But  the  change  must  be  bona  fide,  and  not  mere- 
ly ostensible.58  A  person  who,  residing  in  and  transacting  business 
in  St.  Louis,  for  the  purpose  of  acquiring  a  residence  for  juris- 
dictional  purposes  crosses  the  river  to  East  St.  Louis,  and  there 
rents  a  room  in  which  he  sleeps  at  night  while  he  continues  to 
transact  his  business  and  also  to  take  his  meals  in  St.  Louis,  does 
not  acquire  a  residence  for  jurisdictional  purposes.59 

Another  mode  of  securing  Federal  jurisdiction  is  to  transfer  the 
subject  of  litigation  or  the  cause  of  action,  to  a  nonresident.  The 
test  in  this  case  is  the  same  as  that  applied  in  a  change  of  resi- 
dence, whether  or  not  the  transfer  was  made  in  good  faith.  The 
mere  fact  that  the  subject-matter  of  the  suit  has  been  transferred 
for  the  purpose  of  giving  jurisdiction  to  the  court  will  not  defeat 
jurisdiction,  provided  there  has  been  a  bona  fide  sale  and  transfer, 
by  which  the  transferee  becomes  the  real  owner  and  thereby  the 
party  to  the  suit.60  But  where  it  appears  that  a  conveyance 
to  plaintiff  has  been  made  without  consideration  for  the  sole  pur- 
pose of  making  a  case  of  diverse  citizenship,  the  case  wrill  be  dis- 
missed on  motion.61  When  all  interest  in  the  subject-matter  is 
parted  with  upon  good  consideration,  then  the  fact  that  the  motive 

56  Anderson  v.  Watt,  supra;  Hardenbergh  v.  Ray,  151  U.  S.  112,  38  L.  ed. 
93,   14  Sup.  Ct.  Rep.  305. 

66a  See  our  §  195  above  as  to  jurisdiction  by  assignment. 

57  Briggs  v.  French,  2  Sumn.  251,  4  Fed.  Cas.  No.  1,871. 

58  Mitchell  v.  United  States,  21  Wall.  352,  22  L.  ed.  587. 
69  Kingman  v.  Holthatis,  59  Fed.  305. 

60  Manhattan   L.   Ins.   Co.   v.  Broughton,   109   U.   S.   125,  27  L.  ed.   878,   3 
Sup.  Ct.  Rep.  99;  Colinson  v.  Jackson,  14  Fed.  309,  8  Sawy.  357;  Hawley  v. 
Kepp,  2  Flipp.  177,  11  Fed.  Cas.  No.  6,249;  Briggs  v.  French,  2  Sumn.  251,  4 
Fed.  Cas.  No.  1,871. 

61  Williams  v.  Nottawa,  104  U.  S.  209,  26  L.  ed.  719;   Bernards  T.  P.  v. 
Stebbins,   109  U.  S.  341,  27  L.  ed.  956,  3   Sup.  Ct.  Rep.  252;   Greenwalt  v. 
Tucker,  .10   Fed.  884,  3  McCrary,  450;   Maxweld  v.  Levy,  2  DaH.   381,  1   L. 
ed.  424,  4  Dall.  330,  11  L.  ed.  854.  16  Fed.  Cas.  No.  9,321. 


144         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  247 

was  to  get  Federal  jurisdiction  will  not  be  considered.62  But  if 
at  any  time  it  appears  that  the  parties  to  the  suit  have  been  im- 
properly or  collusively  made  or  joined,  either  as  plaintiffs  or  de- 
fendants, for  the  purpose  of  .creating  a  case  cognizable  or  remov- 
able under  the  act,  the  circuit  court  will  proceed  no  further,  but 
shall  dismiss  the  suit  or  remand  it  to  the  court  from  which  it  was 
removed.68 

§  247.  Shifting  Parties  to  Create  Diversity.  It  should  ap- 
pear in  the  bill  that  there  is  a  diversity  of  citizenship  to  give  juris- 
diction, and  prior  to  the  act  of  March  3,  1875,  this  was  sufficient, 
and  their  position  on  the  bill  was  conclusive.68*  But  since  1875 
the  rule  is  that  jurisdiction  does  not  lawfully  attach  until  all  nec- 
essary parties  are  made  parties.  It  is  not  in  the  discretion  of  the 
pleader  to  arrange  parties  in  the  suit  so  as  to  confer  jurisdiction. 
They  must  be  arranged  according  to  their  interests  in  the  suit, 
and  the  court,  when  passing  on  the  question  of  jurisdiction,  will 
do  this.  It  will  look  to  the  real  facts  of  the  case,  as  developed  by 
the  pleadings,  and  will  disregard  the  artificial  arrangement  of 
the  parties  by  the  pleader,  and  ascertain  from  the  pleadings  where 
the  real  controversy  lies,  and  arrange  the  parties  accordingly. 
Parties  cannot,  by  arranging  themselves  as  plaintiffs  or  defend- 
ants in  a  cause,  create  a  fictitious  ground  of  Federal  jurisdiction. 
This  is  denominated  a  joinder  of  parties  to  confer  jurisdiction.64 
AYhere  there  are  several  defendants  to  a  suit  some  of  whom  have 
the  required  diverse  citizenship  to  support  the  bill,  and  some 
who  have  not,  jurisdiction  may  be  retained  over  the  defendants 
as  to  whom  diversity  of  citizenship  exists,  and  a  dismissal  of  the 
complaint  may,  and  in  the  proper  case  will,  be  permitted  against 
defendants  who  are  not  found  to  be  within  the  jurisdiction  of 

«3  Norton  v.  European  &  N.  A.  R.  Co.  32  Fed.  865 :  Lake  County  v.  Dudley, 
173  U.  S.  243,  43  L.  ed.  684,  19  Sup.  Ct.  Rep.  398;  Irvine  Co.  v.  Bond,  74 
Fed.  849:  Alkire  Grocery  Co.  v.  Richesin,  91  Fed.  84;  Ashley  v.  Presque  Isle 
County,  54  U.  S.  App.  450.  83  Fed.  534,  27  C.  C.  A.  585;  Board  of  Commis- 
sioners of  Lake  County  v.  Schradsky,  38  C.  C.  A.  17,  97  Fed.  2. 

63  Fountain  v.  Town  of  Angelica,  12  Fed.  8,  20  Blatchf.  448;  Havees  v. 
Contra  Costa  Water  Co.  25  Alb.  Law  J.  146  (S.  C.  11  Fed.  93,  note)  ;  Barney 
v.  Baltimore  City,  6  Wall.  280,  18  -L.  ed.  825. 

63a  Bland  v.  Fleeman,  69  Fed.  672. 

«*  Bland  v.  Fleeman,  69  Fed.  672;   Stephens  v.  Smartt,  172  Fed.  471. 


§    247  DIVERSE    CITIZENSHIP  145 

the  court,  unless  such  defendants  are  indispensable  to  the  entry 
of  a  decree  against  the  remaining  defendants,  and  when  it  may 
be  done  without  prejudice.65  When  the  parties  are  before  the 
co\irt  the  court  will,  for  the  purpose  of  ascertaining  the  jurisdic- 
tion, arrange  them  according  to  their  actual  interests,  and  place 
them  on  the  side  of  the  controversy  to  which  they  belong,  and, 
if  it  then  appears  that  the  controversy  is  not  between  citizens  of 
different  states,  the  court  is  without  jurisdiction.66  If  some  of 
the  parties  plaintiff  have  "interests  identical  with  some  of  the 
parties  defendant,  and  the  interest  is  not  separable,  you  cannot 
separate  them  because  they  are  citizens  of  different  states  to  get 
jurisdiction  by  diversity."  67 

In  Olst  Colony  Trust  Co.  v.  Atlanta  Ry.  Co.  100  Fed.  798, 
which  was  a  suit  by  a  trust  company  against  two  railroad  com- 
panies to  enjoin  the  former  company  from  enforcing  a  right 
which  it  said  it  had  obtained  by  an  ordinance  of  the  city 
to  condemn  a  certain  portion  of  the  track  of  the  latter  com- 
pany. The  latter  company  came  into  court  by  cross  bill, 
and  adopted  all  of  the  allegations  of  the  bill  of  the  trust 
company,  and  arranged  itself  by  all  pleadings  on  the  side  of  the 
litigation  with  the  trust  company.  The  court  said:  "The  plead- 
ings put  it  on  the  side  of  the  complainant  necessarily ;  its  interests 
are  there  very  clearly;  the  whole  countenance  of  the  case  puts 
the  latter  railway  company  on  the  same  side  with  the  trust  com- 
pany in  this  litigation.  So,  I  think  there  can  be  no  question  here 
that  it  is  not  only  the  duty  of  the  court,  but  it  is  its  imperative 

65  Horn  v.  Lockhart,  17  Wall.  570,  21  L.  ed.  657 ;  Oxley  Stave  Co.  v.  Coopers' 
International   Union   of  America,   72   Fed.   695 ;    Mason  v.   Dullagham,  27   C. 
C.  A.  296,  82  Fed.  689;   Grove  v.  Grove,  93   Fed.  865;   Smith  v.  Oil  Co.  30 
C.  C.  A.  103,  86  Fed.  359;  Delaware,  L.  &  W.  R.  Co.  v.  Frank,  110  Fed.  689. 

66  Martin  v.  Ellis,   9   Fed.  367;    Covert  v.  Waldron,  33   Fed.   311;    Rich  v. 
Bray,  37  Fed.  273,  2  L.R.A.  225:  Williams  v.  Nottawa,  104  U.  S.  209,  26  L. 
ed.  719;  Detroit  City  v.  Dean,  106  U.  S.  537,  27  L.  ed.  300,  1  Sup.  Ct.  Rep. 
560;  Railway  Co.  v.  Swan,  111  U.  S.  379,  28  L.  ed.  462,  4  Sup.  Ct.  Rep.  510; 
Oashman  v.  Canal  Co.  118  U.  S.  58,  30  L.  ed.  72,  6  Sup.  Ct.  Rep.  926;  Cilley 
v.   Patten,   62   Fed.   498;   Walster  v.  United  States,  42   Fed.   892;    Patten  v. 
Cilley,  1  C.  C.  A.  522,  50  Fed.    337;  In  re  Cilley,  58  Fed.  977. 

67  Carroll  v.  Chesapeake  &  O.  Coal  Agency  Co*  61  C.  C.  A.  49,  ]24  Fed.  309; 
/.laiigeles  v.  Donau  Brewing  Co.  53  Fed.  513;  Dawson  v.  Columbia  Ave.  Sav. 
Fund,  etc.,  Co.  197  U.  S.  178,  49  L.  ed.  713,  25  Sup.  Ct.  Rep.  420;  Joseph  Dry 
Goods  Co.  v.  Hecht,  57  C.  C.  A.  64,  120  Fed.  761;  Venner  v.  Great  Northern 
R.  Co.  209  U.  S.  24,  52  L.  ed.  666,  28  Sup.  Ct.  Rep.  328;   Gage  v.  Riverside 
Truck  Co.  156  Fed.  1003. 

Montg. — 10. 


146         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  247 

duty,  under  the  law,  to  put  the  latter  railway  company  on  the 
side  with  the  complainant;  and  it  being  a  citizen  of  Georgia,  and 
the  defendant  railway  company  being  a  citizen  of  Georgia,  nec- 
essarily the  jurisdiction  fails.  It  is  well  understood  that  this 
court,  however,  will  not  oust  its  own  jurisdiction — will  not  de- 
feat its  own  jurisdiction — unless  it  is  met  squarely  with  a  state 
of  facts  which  requires  it;  that  is,  where  litigation  is  brought 
into  court,  the  court  will  not  seek  to  rid  itself  of  hearing  the  case, 
if  it  finds  that,  by  dispensing  with  certain  parties,  it  can  relieve 
the  existing  situation,  and  have  only  proper  parties  before 
the  court  on  the  question  of  diverse  citizenship.  The  question 
then  arises  here,  whether  or  not  the  latter  railway  company  is 
an  indispensable  party  to  this  litigation.  If  it  is  not,  of  course 
the  court,  under  the  rule  and  practice  just  suggested,  would  dis- 
miss it  from  the  litigation,  and  leave  the  case  cognizable  in  the 
circuit  court.  Now,  can  this  litigation  be  settled  without  the 
presence  of  the  latter  company?  Will  the  court  undertake  to 
decree  that  A  has  a  right  against  B  at  the  instance  of  C,  without 
having  B  before  it?  In  my  judgment,  it  is  absolutely  necessary 
to  have  the  latter  company  before  the  court  in  order  to  determine 
and  fully  dispose  of  the  issues  presented  in  this  case.  In  that 
view,  there  is  but  one  course  for  the  court  to  pursue,  and  that 
is  to  dismiss  this  litigation  from  the  court  for  want  of  jurisdic- 
tion on  account  of  the  citizenship  of  the  parties;  and  this  with- 
out prejudice  to  the  rights  of  the  parties  in  the  case." 

Where  a  copartnership  is  sued  one  or  more  of  the  partners 
may  be  left  out,  when  they  are  citizens  of  the  same  state  as  the 
plaintiff,  so  as  to  give  the  Federal  courts  jurisdiction.68  But 
previous  to  this  in  Ruble  v.  Hyde,  1  McCrary,  513,  3  Fed.  331, 
it  had  been  held  that  a  copartner  could  not  be  left  out  to  give 
jurisdiction  to  the  Federal  courts,  and  as  this  case  was  not  men- 
tioned in  Smith  v.  Consumers'  Cotton  Oil  Co.  86  Fed.  859,  it 
would  appear  that  it  had  been  overlooked,  or  there  would  have 
been  a  different  conclusion  on  a  similar  statement  of  facts. 

«8  §  50,  Judicial  Code,  our  §  173,  supra.  Clearwater  v.  Meredith,  21  How. 
489,  16  L.  ed.  201;  Inbusch  v.  Farwell,  1  Black,  566,  17  L.  ed.  188;  Smith  v. 
Consumers'  Cotton  Oil  Co.  86  Fed.  359,  30  C.  C.  A.  103;  Barney  v.  Baltimore 
City,  6  Wall.  280,  18  L.  ed.  825. 


§    249  DIVERSE    CITIZENSHIP  147 

When  a  suit  is  brought  in  the  name  of  a  state  on  the  relation 
of  an  individual,  it  is  the  citizenship  and  the  residence  of  the 
individual  that  govern  the  jurisdiction  of  the  circuit  court.69 

§  248.  Venue  as  Affecting  Jurisdiction  Based  on  Diverse 
Citizenship. 

PL  §  51,  Judicial  Code*  86  8 tat.  at  L.  1101,  Comp.  St. 
1911,  p.  150,  1912  Supp.  F.  8.  A.  v.  1,  p.  153.  ".  .  .  Where 
the  jurisdiction  is  founded  only  on  the  fact  that  the  action 
is  between  citizens  of  different  states,  suit  shall  be  brought 
only  in  the  district  of  the  residence  of  either  the  plaintiff  or 
the  defendant." 

By  reason  of  the  provision  of  the  statute  above  quoted,  a  suit 
by  a  citizen  of  one  state  against  a  citizen  of  another  state  brought 
in  a  third  state,  would  not  lie,  because  the  venue  would  be  improp- 
erly laid  and  on  timely  objection  the  suit  would  be  dismissed.  But 
venue  not  being  jurisdictional,  the  defect  might  be  waived  by  the 
defendant's  failure  to  object  at  the  outset  of  the  action. 

This  is  a  very  different  matter  from  that  discussed  in  the  pre- 
ceding section.  The  following  illustration  will  show  the  difference 
in  the  two  classes  of  cases : 

Supposing  a  citizen  of  California  sued  a  citizen  of  Nevada  to- 
gether with  a  citizen  of  California  in  the  Federal  district  court 
in  Arizona.  The  fact  that  there  was  a  California  citizen  on  each 
side  of  the  controversy  would  be  fatal  to  setting  up  diverse  citizen- 
ship as  a  ground  of  Federal  jurisdiction,  unless  the  suit  against 
the  California  defendant  could  be  dismissed.  Assuming  that  this 
could  be  done,  leaving  the  contest  between  the  California  and  a 
Nevada  citizen,  there  would  be  the  requisite  diversity  of  citizen- 
ship as  a  ground  of  Federal  jurisdiction,  and  the  Arizona  Federal 
court  would  not  be  deprived  of  jurisdiction  unless  the  Nevada 
defendant  moved  to  dismiss  for  defect  in  venue. 

§  249.  Issue  of  Citizenship — How  Raised.  The  required  di- 
versity of  citizenship  must  appear  on  the  face  of  initial  pleading 

69  Indiana  v.  Glover,  155  U.  S.  513,  39  L.  ed.  243,  15  Sup.  Ct.  Rep.  186; 
McNutt  v.  Bland,  2  How.  9,  11  L.  ed.  159. 

a  For  Annotation  of  this  §  51,  Judicial  Code,  see  footnote  b,  ante,  our  §  161. 


148         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  249 

on  the  part  of  the  complainant,  and  if  it  does  not  appear  the  court 
will  assume  that  it  has  no  jurisdiction  and  dismiss  the  bill.70  If 
the  suit  is  in  equity  the  matter  is  governed  by  the  Equity  Rule  29, 
providing  for  a  motion  to  dismiss  if  the  fact  that  there  is  not  a 
proper  diversity  of  citizenship  appears  on  the  face  of  the  bill,  or 
in  the  answer  if  it  does  not  appear  on  the  face  of  the  bill. 
If  a  motion  to  dismiss  is  filed  it  may  be  in  the  following  form : 

IN  THE  DISTRICT  COURT  OF  THE  U.  S.  FOR  THE  DISTRICT 

OF , DIVISION. 


John    Doe, 

Plaintiff, 


vs. 


Richard    Roe, 

Defendant, 


MOTION  TO  DISMISS 


And  now  comes  Richard  Roe,  the  defendant,  in  the  above  entitled  action, 
and  moves  the  court  to  dismiss  this  action  and  that  he  take  his  costs  in 
this  suit  incurred,  for  that  it  appears  by  the  pleadings  filed,  (or  by  the  evi- 
dence taken ) ,  in  the  cause  that ( naming  party )  is  not  a  citizen 

of  the  State  of  ,  as  alleged,  and  therefore  no  diversity  of  citizen- 
ship exists  as  alleged  and  upon  which  basis  the  court  is  alleged  to  have 
jurisdiction. 

A.   B. 
Solicitor,  etc. 

It  is  a  practice  to  be  recommended,  that  the  question  of  diversity 
of  citizenship  should  be  raised  in  the  answer,  before  the  case  goes 
to  trial.  If  it  is  not  raised,  the  court  will  not  infer  a  want  of  ju- 
risdiction unless  it  affirmatively  appears  in  the  legitimate  evidence 
taken  on  the  main  issues  in  the  case.  The  court  will  not  admit  evi- 
dence on  issues  not  raised  in  the  pleadings.  But  if  the  issue  is 
raised  in  the  answer,  all  evidence  tending  to  prove  the  issue  will 
be  admitted.  If  the  answer  raises  the  issue  of  diversity  of  citizen- 
ship, it  may  be  substantially  as  follows : 

70  Boston  Safe-Deposit  &  Trust  Co.  v.  City  of  Racine  et  al.  97  Fed.  817; 
Water  Co.  v.  Babcock,  76  Fed.  243;  First  National  Bank  v.  Radford  Trust 
Co.  47  U.  S.  App.  692,  26  C.  C.  A.  1,  80  Fed.  569;  Timmons  v.  Ely  Town 
Land  Co.  139  U.  S.  378,  35  L.  ed.  195,  11  Sup.  Ct.  Rep.  585;  Home  v."  George 
H.  Hammond  Co.  155  U.  S.  394,  39  L.  ed.  197,  15  Sup.  Ct.  Rep.  167. 


§    249  DIVERSE    CITIZENSHIP  149 

IN  THE  DISTRICT  COURT  OF  THE  U.  S.  FOR  THE   DISTRICT 

OF , DIVISION. 


John    Doe, 

Plaintiff, 

vs. 
Richard    Roe, 

Defendant. 


ANSWER 


Comes  new  the  defendant,  Richard  Roe,  and  answers  plaintiff's  bill  of  com- 
plaint, as  fellows,  to  wit: — 

Denies  that  the  plaintiff  is  now,  or  ever  has  been  a  citizen  of  the  State 
of  (naming  State)  or  that  he  is  now,  or  ever  has  been  an  in- 
habitant of  said  State  of  (naming  State)  or  that  he  does  now, 

or  ever  has  resided  therein.  But  defendant  alleges  that  plaintiff  is  now,  and 
at  the  commencement  of  this  suit  was,  a  citizen  and  resident  of  the  State  of 

(naming  State)  of  which  State,  that  is,  the  State  of 

(naming  State)  the  defendant  Richard  Roe  is  and  was  at  the  commencement 
of  this  action,  a  citizen  and  resident.  (Then  take  up  other  defenses  to  the 
bill.) 

Wherefore  defendant  prays  the  said  plaintiff,  John  Doe,  take  nothing  by 
his  bill,  that  the  said  bill  be  dismissed,  and  that  the  defendant  have  his 
costs  herein  incurred. 

A.  B. 

Solicitor. 

If  the  action  is  at  law  the  issue  would  be  raised  in  the  same 
manner  as  a  question  of  jurisdiction  in  the  state  court  in  which 
that  district  court  is  situated.  All  defenses  in  an  action  at  law 
are  open  to  a  defendant  in  the  district  court  of  the  United  States 
under  any  form  of  plea,  answer,  or  demurrer,  which  would  have 
been  open  to  him  under  like  pleading  in  the  courts  of  the  state 
within  which  the  district  court  is  held.  This  may  be  by  general 
denial  where  the  state  law  permits.71  If  the  defense  of  no 
jurisdiction  must  be  especially  pleaded  in  the  state  court,  it  may 
be  so  pleaded  in  the  Federal  court,  and  testimony  in  reference 
to  the  citizenship  of  the  parties  is  only  admissible  in  support  of 
allegations  properly  made  in  the  pleadings.72  If  the  issue  is  raised 

TlChemung  Canal  Bank  v.  Lowery,  93  U.  S.  72,  23  L.  ed.  806;  Oscanyan 
v.  Winchester  Repeating  Arms  Co.'  Fed.  Cas.  No.  10,600,  15  Blatchf.  7!), 
17  Am.  Law  Reg.  (N.  S.)  626,  13  Amer.  Law  Rev.  161,  affirmed,  Oscanyan 
v.  Arms  Co.  10,3  U.  S.  261,  26  L.  ed.  539;  Lafayette  Bridge  Co.  v.  Streator, 
105  Fed.  729;  Theroux  v.  Northern  Pac.  R.  Co.  64  Fed.  87.  12  C.  C.  A.  52; 
Johnston  v.  Klopsch.  88  Fed.  692;  Celluloid  Mfg.  Co.  v.  American  Zylonite  Co. 
34  Fed.  744;  Frank  v.  Chetwood,  9  Rep.  6,  9  Fed.  Cas.  No.  5,051. 

72  Preferred  Ace.  Ins.  Co.  v.  Barker,  93  Fed.  158,  35  C.  C.  A.  250. 


150         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  250 

by  demurrer  in  the  state  court,  the  same  rule  applies  in  the  dis- 
trict court.78 

§  250.  When  Want  of  Diversity  Appears  on  the  Trial. 
It  may  happen  that  the  want  of  the  required  citizenship,  when  it 
does  not  appear  in  the  pleadings,  and  is  not  raised  in  the  answer, 
will  appear  on  the  trial  of  the  case.  If  it  should  appear  thus,  it 
is  the  duty  of  the  court  sua  sponte  to  dismiss  the  case  without  either 
motion  or  suggestion.  But  the  defendant  may  take  the  initiative 
by  filing  a  motion.74 

§  37,  Judicial  Code,  1912  Supp.  F.  8.  A.  v.  1,  p.  150. 
"If,  in  any  suit  commenced  in  a  district  court,  or 
removed  from  a  state  court  to  a  district  court  of  the  United 
States,  it  shall  appear  to  the  satisfaction  of  said  district 
court,  at  any  time  after  such  suit  has  been  brought  or  re- 
moved thereto,  that  such  suit  does  not  really  and  substan- 
tially involve  a  dispute  or  controversy  properly  within  the 
jurisdiction  of  said  district  court,  or  that  the  parties  to  said 
suit  have  been  improperly  or  collusively  made -or  joined, 
either  as  plaintiffs  or  defendants,  for  the  purpose  of  creat- 
ing a  case  cognizable  or  removable  under  this  chapter,  the 
said  district  court  shall  proceed  no  further  therein,  but  shall 
dismiss  the  suit,  or  remand  it  to  the  court  from  which  it  was 
removed,  as  justice  may  require,  and  shall  make  such  order 
as  to  costs  as  shall  be  just." 

Thus,  the  court  must  dismiss  the  case  at  once  if  it  appears  at 
any  time  during  the  progress  of  the  case  that  it  is  without  jur- 
isdiction.76 When  the  issue  is  raised  it  may  be  tried  by  the  judge 
or  submitted  to  a  jury.76 

73  Chemung  Canal  Bank  v.  Lowery,  93  U.  S.  76,  23  L.  ed.  806.    See  also  Kent 
v.  Bay  State  Gas.  Co.  93  Fed.  88,7." 

74  Williams  v.  Nottawa.  104  U.  S.  212,  26  L.  ed.  720:  Farmington  v.  Pills- 
bury,  114  U.  S.  144,  29  L.  ed.  114,  5  Sup.  Ct.  Rep.  807;  Little  v.  Giles,  118 
U.  S.  603,  604,  30  L.  ed.  269.  7   Sup.  Ct.  Rep.  32;   Hartog  v.  Memory,   116 
U.  S.  588,  29  L.  ed.  725,  6  Sup.  Ct.  Rep.  521;  Morris  v.  Gilmer,  129  U.  S. 
315,  32  L.  ed.  690,  9  Sup.  Ct.  Rep.  289. 

75  Turner  v.  Farmers'  Loan  &  T.  Co.  106  U.  S.  555,  27  L.  ed.  274,  1   Sup. 
Ct.  Rep.  519;  King  Bridge  Co.  v.  Otoe  County,  120  U.  S.  226,  30  L.  ed.  624, 
7  Sup.  Ct.  Rep.  552. 

76Wetmore  v.  Rymer,  169  U.  S.  115,  42  L.  ed.  684,  18  Sup.  Ct.  Rep.  293; 
Canadian  Pac.  R.  Co.  v.  Wenham,  146  Fed.  206,  207. 


CHAPTER  9. 

AMOUNT  IN  CONTROVERSY. 

Sec. 

260.  In  General. 

261.  When  Amount  in   Controversy   Is   Material. 

262.  Same — Removal  of  Land  Grant  Cases. 

263.  When  the  Amount  in  Controversy  Is  Not  Material. 

264.  What  Is  "Amount  in  Controversy." 

265.  Amount  Stated  in  Declaration  or  Bill  Controls  Unless  Pleaded  Errone- 

ously or  in  Bad  Faith. 

266.  Amount  in  Controversy  Includes  What. 

267.  Effect  of  Valid  Set-Off  or  Payment. 

268.  Aggregating  Amounts  to  Create  Jurisdiction. 

269.  Amendment  to   Show. 

270.  State  Statutes  Do  Not  Control  as  to  Splitting  Demands. 

271.  Raising  Issue  as  to  Amount  or  Good  Faith. 

§  260.  In  General.  The  Federal  statutes  have  made  the  sum 
or  value  of  the  matter  in  controversy  an  essential  element  of  a 
large  number  of  cases  of  which  the  district  courts  have  jurisdic- 
tion both  originally  and  on  removal. 

The  matter  in  controversy  must  exceed,  exclusive  of  interest 
and  costs,  the  sum  or  value  of  $3,000  in  cases  brought  in  the 
Federal  court  originally  or  on  removal,  and  whether  the  action 
be  based  on  the  ground  of  diverse  citizenship  or  a  Federal  ques- 
tion, but  with  certain  exceptions  in  the  latter  class  of  cases.  Cases 
in  which  the  amount  in  controversy  is  material  are  specifically 
enumerated  in  §  261  following. 

The  amount  in  controversy  is  not  material  in  suits  brought 
by  the  United  States.1  The  amount  is  not  material  in  suits  be- 


1  United  States  v.  Sayward,  160  U.  S.  493.  40  L.  ed.  508,  16  Sup.  Ct.  Rep. 
371:  United  States  v.  Reid,  90  Fed.  522;  United  States  v.  Flourney  Live 
Stock,  etc.,  Co.  71  Fed.  576;  United  States  v.  Kentucky  River  Mills,  4*5  Fed. 
273;  United  States  v.  Shaw,  39  Fed.  433,  3  L.R.A.  232. 

151 


152         MONTGOMERY'S  MANUAL  OP  FEDERAL  PROCEDURE     §  261 

twccn  citizens  of  the  same  state  claiming  under  land  grants  from 
different  states  in  cases  originally  brought  in  the  Federal  court,2 
but  is  material  on  removal  under  §  30,  Judicial  Code.8  The 
amount  is  not  material  in  cases  of  which  the  Federal  courts  have 
exclusive  jurisdiction  and  in  other  cases  especially  excepted  in 
paragraphs  2  to  25  of  §  24,  Judicial  Code.  The  provisions  of 
§  24,  Judicial  Code,  setting  out  the  cases  in  which  the  amount 
in  controversy  is  not  material,  are  quoted  in  §  263  hereafter,  and 
the  subject  under  the  several  jurisdictional  heads  is  also  treated 
in  detail  under  chapter  12,  hereafter,  entitled,  "Summaries — Or- 
iginal Jurisdiction,  Removal,  Amount,  Venue  for  the  Several 
Matters  of  the  District  Court  Cognizance."  The  present  chapter 
gives  some  suggestions  as  to  what  is  meant  by  the  sum  or  value  of 
the  matter  in  controversy  and  as  to  the  pleading  and  determination 
of  the  issue  of  "amount  in  controversy." 

§  261.  When  Amount  in  Controversy  Is  Material. 

§  24,  Judicial  Code*  36  Stat.  at  L.  1091,  Comp.  St. 
1911,  p.  135,  1912  Supp.  F.  S.  A.  v.  1,  p.  139.  "The  dis- 
trict court  shall  have  original  jurisdiction  as  follows :  First. 
Of  all  suits  of  a  civil  nature,  at  common  law  or  in  equity, 
.  .  .  where  the  matter  in  controversy  exceeds,  exclusive  of 
interest  and  costs,  the  sum  or  value  of  three  thousand  dollars, 
and  (a)  arises  under  the  Constitution  or  laws  of  the  United 
States  or  treaties  made,  or  which  shall  be  made,  under  their 
authority,  or  (b)  is  between  citizens  of  different  states,  or 
(c)  is  between  citizens  of  state  and  foreign  states,  citizens 
or  subjects.  .  .  .  Provided,  however,  That  the  foregoing 
provision  as  to  the  sum  or  value  of  the  matter  in  controversy 
shall  not  be  construed  to  apply  to  any  of  the  cases  mentioned 
in  the  succeeding  paragraphs  of  this  section.  .  .  ." 

§  28,  Judicial  Code?  36  Stat.  at  L.  1094,  Comp.  St.  1911, 
p.  140,  1912  Supp.  F.  S.  A.  v.  1,  p.  144.  "Any  suit  of  a  civil 
nature,  at  law  or  in  equity,  arising  under  the  Constitution, 
or  laws  of  the  United  States,  or  treaties  made,  or  which  shall 

2  United  States  v.  Sayward,  160  U.  S.  493,  40  L.  ed.  508,  16  Sup.  Ct.  Rep. 
371. 

3  §  262,  infra. 

»  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  b,  ante,  our  §  194. 
b  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  «,  ante,  our  §  221. 


§    202  AMOUNT    IN    CONTROVERSY  153 

be  made,  under  their  authority,  of  which  the  district  courts 
of  the  United  States  are  given  original  jurisdiction  by  this 
title,  which  may  now  be  pending  or  which  may  hereafter  be 
brought,  in  any  state  court,  may  be  removed.  .  .  .  Any 
other  suit  of  a  civil  nature,  at  law  or  in  equity,  of  which  the 
district  courts  of  the  United  States  are  given  jurisdiction 
by  this  title,  and  which  are  now  pending  on  which  may  here- 
after be  brought,  in  any  state  court,  may  be  removed.  .  .  ." 
See  Amendment  Jan.  20,  1914,  quoted  §  299,  post. 

§  262.  Same — Removal  of  Land  Grant  Cases. 

§  SO,  Judicial  Code*  36  Stat.  at  L.  1096,  Comp.  St 
1911,  p.  142,  1912  Supp.  F.  8.  A.  v.  1,  p.  146.  "If  in  any 
action  commenced  in  a  state  court  the  title  of  land  be  con- 
cerned, and  the  parties  are  citizens  of  the  same  state  and  the 
matter  in  dispute  exceeds  the  sum  or  value  of  three  thousand 
dollars,  exclusive  of  interest  and  costs,  the  sum  or  value  being 
made  to  appear,  one  or  more  of  the  plaintiffs  or  defendants, 
before  the  trial,  may  state  to  the  court,  and  make  affidavit 
if  the  court  require  it,  that  he  or  they  claim,  and  shall  rely 
upon,  a  right  or  title  to  the  land  under  a  grant  from  a  state, 
and  produce  the  original  grant,  or  an  exemplification  of  it, 
except  where  the  loss  of  public  records  shall  put  it  out  of  his 
or  their  power,  and  shall  move  that  any  one  or  more  of  the 
adverse  party  inform  the  court  whether  he  or  they  claim  a 
right  or  title  to  the  land  under  a  grant  from  some  other  state, 
the  party  or  parties  so  required  shall  give  such  information, 
or  otherwise  not  be  allowed  to  plead  such  grant  or  give  it 
in  evidence  upon  the  trial.  If  he  or  they  inform  the  court 
that  he  or  they  do  claim  under  such  grant,  any  one  or  more 
of  the  party  moving  for  such  information  may  then,  on  peti- 
tion and  bond,  as  hereinbefore  mentioned  in  this  chapter,  re- 
move the  cause  for  trial  to  the  district  court  of  the  United 
States  next  to  be  holden  in  such  district ;  and  any  one  of  either 
party  removing  the  cause  shall  not  be  allowed  to  plead  or 
give  evidence  of  any  other  title  than  that  by  him  or  them  stat- 
ed as  aforesaid  as  the  ground  of  his  or  their  claim." 

«  Re-enacting  part  of  R.  S.  §  647,  Foster's  Fed.  Prac.  (4th  ed.)  p.  1457, 
Comp.  St.  1901,  p.  524,  4  F.  S.  A.  265,  amended  by  25  Stat.  at  L.  435,  Comp. 
St.  1001,  p.  510,  4  F.  S.  A.  386,  which  is  repealed  by  §  297,  Judicial  Code. 

This  act  substitutes  $3,000  for  $2,000  as  the  'jurisdictional  amount,  and 
substitutes  the  words  "district  court"  for  the  words  "circuit  court."  Paw  let. 
v.  Clark,  9  Cranch,  292,  3  L.  ed.  735.  In  general,  Stevenson  v.  Fain,  195  U. 
S.  165,  49  L.  ed.  142,  25  Sup.  Ct.  Rep.  6. 


154         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  203 

§  263.  When  the  Amount  in  Controversy  Is  Not  Material. 

Pt.  §  24,  Judicial  Code*  36  Stat.  at  L.  1091,  Comp.  St. 
1911,  pp.  135-139,  1912  Supp.  F.  S.  A.  v.  1,  p.  139.  "The 
district  courts  shall  have  original  jurisdiction  as  follows : 

"First.  Of  all  suits  of  a  civil  nature  at  common  law  or 
in  equity,  brought  by  the  United  States,  or  by  any  officer 
thereof  authorized  by  law  to  sue,  .  .  .  provision  as  to  the 
sum  or  value  of  the  matter  in  controversy,  shall  not  be  con- 
strued to  apply  to  any  of  the  cases  mentioned  in  the  succeed- 
ing paragraphs  of  this  section. 

"Second.  (Of  crimes  and  offenses.)  Of  all  crimes  and 
offenses  cognizable  under  the  authority  of  the  United  States. 

"Third.  (Of  admiralty  causes,  seizures  and  prizes.)  Of 
all  civil  causes  of  admiralty  and  maritime  jurisdiction,  sav- 
ing to  suitors  in  all  cases  the  right  of  a  common  law  remedy 
where  the  common  law  is  competent  to  give  it ;  of  all  seizures 
on  land  or  waters  not  within  admiralty  and  maritime  juris- 
diction ;  of  all  prizes  brought  into  the  United  States ;  and  of 
all  proceedings  for  the  condemnation  of  property  taken  as 
prize". 

"Fourth.  (Of  suits  under  any  law  relating  to  the  slave 
trade.)  Of  all  suits  arising  under  any  law  relating  to  the 
slave  trade. 

"Fifth.  (Of  cases  under  internal  revenue,  customs,  and 
tonnage  laws. )  Of  all  cases  arising  under  any  law  providing 
for  internal  revenue,  or  from  revenue  from  imports  or  ton- 
nage, except  those  cases  arising  under  any  law  providing 
revenue  from  imports,  jurisdiction  of  which  has  been  con- 
ferred upon  the  court  of  customs  appeals. 

"Sixth.  (Of  suits  under  postal  laws.)  Of  all  cases  arising 
under  the  postal  laws. 

"Seventh.  (Of  suits  under  the  patent,  the  copyright,  and 
the  trademark  laws.)  Of  all  suits,  at  law  or  in  equity,  aris- 
ing under  the  patent,  the  copyright,  and  the  trademark  laws. 

"Eighth.  (Of  suits  for  violation  of  interstate  commerce 
laws.)  Of  all  suits  and  proceedings  arising  under  any  law 
regulating  commerce,  except  those  suits  and  proceedings 
exclusive  jurisdiction  of  which  has  been  conferred  upon  the 
commerce  court.  (Commerce  court  now  abolished.  See 
ch.  9,  Judicial  Code,  in  our  Appendix.  But  see  amendment, 
§  28,  Judicial  Code,  quoted  §  299,  post.) 

"Ninth.     (Of  penalties  and  forfeitures.)     Of  all  suits  and 

d  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»,  ante,  our  §  194. 


§    263  AMOUNT    IN    CONTROVERSY  155 

proceedings  for  the  enforcement  of  penalties  and  forfeitures 
incurred  under  any  law  of  the  United  States. 

"Tenth.  (Of  suits  on  debentures.)  Of  all  suits  by  the 
assignee  of  any  debenture  for  drawback  of  duties  issued  under 
any  law  for  the  collection  of  duties,  against  the  person  to 
whom  such  debenture  was  originally  granted,  or  against  any 
indorser  thereof,  to  recover  the  amount  of  such  debenture. 

"Eleventh.  (Of  suits  for  injuries  on  account  of  acts  done 
under  laws  of  the  United  States.)  Of  all  suits  brought  by 
any  person  to  recover  damages  for  any  injury  to  his  person 
or  property  on  account  of  any  act  done  by  him  under  any  law 
of  the  United  States,  for  the  protection  or  collection  of  any 
of  the  revenues  thereof,  or  to  enforce  the  right  of  citizens 
of  the  United  States  to  vote  in  the  several  states. 

"'Twelfth.  (Of  suits  concerning  civil  rights.)  Of  all  suits 
authorized  by  law  to  be  brought  by  any  person  for  the  recovery 
of  damages  on  account  of  any  injury  to  his  person  or  prop- 
erty, or  of  the  deprivation  of  any  right  or  privilege  of  a  cit- 
izen of  the  United  States,  by  any  act  done  in  furtherance  of 
any  conspiracy  mentioned  in  section  nineteen  hundred  and 
eighty,  Revised  Statutes. 

"Thirteenth.  (Of  suits  against  persons  having  knowledge 
of  conspiracy,  etc.)  Of  all  suits  authorized  by  law  to  be 
brought  against  any  person  who,  having  knowledge  that  any 
of  the  wrongs  mentioned  in  section  nineteen  hundred  and 
eighty,  Revised  Statutes,  are  about  to  be  done,  and  having, 
power  to  prevent  or  aid  in  preventing  the  same,  neglects  or 
refuses  so  to  do,  to  recover  damages  for  any  such  wrongful 
act. 

"Fourteenth.  (Of  suits  to  redress  the  deprivation,  under 
color  of  law,  of  civil  rights.)  Of  all  suits,  at  law  or  in  equity, 
authorized  by  law  to  be  brought  by  any  person  to  redress  the 
deprivation,  under  color  of  any  law,  statute,  ordinance,  regu- 
lation, custom,  or  usage  of  any  state,  of  any  right,  privilege, 
or  immunity  secured  by  the  Constitution  of  the  United  States, 
or  of  any  right  secured  by  any  law  of  the  United  States  pro- 
viding for  equal  rights  of  citizens  of  the  United  States,  or 
of  all  persons  within  the  jurisdiction  of  the  United  States. 

"Fifteenth.  (Of  suits  to  recover  certain  offices.)  Of  all 
suits  to  recover  possession  of  any  office,  except  that  of  elector 
of  President  or  Vice  President,  Representative  in  or  delegate 
to  Congress,  or  member  of  a  state  legislature,  authorized  by- 
law to  be  brought,  wherein  it  appears  that  the  sole  question 
touching  the  title  to  such  office  arises  out  of  the  denial  of 


156         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  263 

the  right  to  vote  to  any  citizen  offering  to  vote,  on  account  of 
race,  color,  or  previous  condition  of  servitude :  Provided,  That 
such  jurisdiction  shall  extend  only  so  far  as  to  determine  the 
rights  of  the  parties  to  such  office  by  reason  of  the  denial 
of  the  right  guaranteed  by  the  Constitution  of  the  United 
States,  and  secured  by  any  law,  to  enforce  the  right  of  citi- 
zens of  the  United  States  to  vote  in  all  the  states. 

"Sixteenth.  (Of  suits  against  national  banking  associa- 
tions.) Of  all  cases  commenced  by  the  United  States,  or  by 
direction  of  any  officer  thereof,  against  any  national  banking 
association,  and  cases  for  winding  up  the  affairs  of  any  such 
bank;  and  of  all  suits  brought  by  any  banking  association 
established  in  the  district  for  which  the  court  is  held,  under 
the  provisions  of  title  "National  Banks,  '  Revised  Statutes, 
to  enjoin  the  Comptroller  of  the  Currency,  or  any  receiver 
acting  under  his  direction,  as  provided  by  said  title.  And  all 
national  banking  associations  established  under  the  laws  of 
the  United  States  shall,  for  the  purposes  of  all  other  actions 
by  or  against  them,  real,  personal,  or  mixed  and  all  suits  in 
equity,  be  deemed  citizens  of  the  states  in  which  they  are  re- 
spectively located. 

"Seventeenth.  (Of  suits  by  aliens  for  torts.)  Of  all 
suits  brought  by  any  alien  for  a  tort  only,  in  violation  of  the 
laws  of  nations  or  of  a  treaty  of  the  United  States. 

"Eighteenth.  (Of  suits  against  consuls  and  vice  consuls.) 
Of  all  suits  against  consuls  and  vice  consuls. 

"Nineteenth.  (Of  suits  and  proceedings  in  bankruptcy.) 
Of  all  matters  and  proceedings  in  bankruptcy. 

"Twentieth.  (Of  suits  against  the  United  States.)  Con- 
current with  the  court  of  claims,  of  all  claims  not  exceeding 
ten  thousand  dollars  founded  upon  the  Constitution  of  the 
United  States  or  any  law  of  Congress,  or  upon  any  regula- 
tion of  an  Executive  Department,  or  upon  any  contract,  ex- 
press or  implied,  with  the  government  of  the  United  States, 
or  for  damages,  liquidated  or  unliquidated,  in  cases  not 
sounding  in  tort,  in  respect  to  which  claims  the  party  would 
be  entitled  to  redress  against  the  United  States,  either  in  a 
court  of  law,  equity,  or  admiralty,  if  the  United  States  were 
suable,  and  of  all  set-offs,  counterclaims,  claims  for  damages, 
whether  liquidated  or  unliquidated,  or  other  demands  what- 
soever on  the  part  of  the  government  of  the  United  States 
against  any  claimant  against  the  government  in  said  court: 
Provided,  however,  That  nothing  in  this  paragraph  shall  be 
construed  as  giving  to  either  the  district  courts  or  the  court 


§    263  AMOUNT    IN    CONTROVERSY  157 

of  claims  jurisdiction  to  hear  and  determine  claims  growing 
out  of  the  late  Civil  War,  and  commonly  known  as  'war 
claims,'  or  to  hear  and  determine  other  claims  which  had  been 
rejected  or  reported  on  adversely  prior  to  the  third  day  of 
March,  eighteen  hundred  and  eighty-seven,  by  any  court, 
department,  or  commission  authorized  to  hear  and  determine 
the  same,  or  to  hear  and  determine  claims  for  pensions ;  or 
as  giving  to  the  district  courts  jurisdiction  of  cases  brought 
to  recover  fees,  salary,  or  compensation  for  official  services 
of  officers  of  the  United  States,  or  brought  for  such  purpose 
by  persons  claiming  as  such  officers  or  as  assignees  or  legal 
representatives  thereof;  but  no  suit  pending  on  the  twenty- 
seventh  day  of  June,  eighteen  hundred  and  ninety-eight,  shall 
abate  or  be  affected  by  this  provision :  And-provided  further, 
That  no  suit  against  the  government  of  the  United  States 
shall  be  allowed  under  this  paragraph  unless  the  same  shall 
have  been  brought  within  six  years  after  the  right  accrued 
for  which  the  claim  is  made:  Provided,  That  the  claims  of 
married  women,  first  accrued  during  marriage,  of  persons 
under  the  age  of  twenty-one  years,  first  accrued  during  mi- 
nority, and  of  idiots,  lunatics,  insane  persons,  and  persons 
beyond  the  seas  at  the  time  the  claim  accrued,  entitled  to  the 
claim,  shall  not  be  barred  if  the  suit  be  brought  within  three 
years  after  the  disability  has  ceased;  but  no  other  disability 
than  those  enumerated  shall  prevent  any  claim  from  being 
barred,  nor  shall  any  of  the  said  disabilities  operate  cumu- 
latively. All  suits  brought  and  tried  under  the  provisions 
of  this  paragraph  shall  be  tried  by  the  court  without  a  jury. 

"Twenty-first.  (Of  suits  for  the  unlawful  inclosure  of 
public  lands.)  Of  proceedings  in  equity,  by  writ  of  injunc- 
tion, to  restrain  violations  of  the  provisions  of  laws  of  the 
United  States  to  prevent  the  unlawful  inclosure  of  public 
lands ;  and  it  shall  be  sufficient  to  give  the  court  jurisdiction 
if  service  of  original  process  be  had  in  any  civil  proceeding 
on  any  agent  or  employee  having  charge  or  control  of  the  in- 
closure. 

"Twenty-second.  (Of  suits  under  immigration  and  con- 
tract labor  laws.)  Of  all  suits  and  proceedings  arising  under 
any  law  regulating  the  immigration  of  aliens  or  under  the 
contract  labor  laws. 

"Twenty-third.  (Of  suits  against  trusts,  monopolies,  and 
unlawful  combinations.)  Of  all  suits  and  proceedings  aris- 
ing under  any  law  to  protect  trade  and  commerce  against 
restraints  and  monopolies. 


158         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  264 

"Twenty-fourth.  (Of  suits  concerning  allotments  of  land 
to  Indians.)  Of  all  actions,  suits,  or  proceedings  involving 
the  right  of  any  person,  in  whole  or  in  part  of  Indian  blood 
or  descent,  to  any  allotment  of  land  under  any  law  or  treaty. 
And  the  judgment  or  decree  of  any  such  court  in  favor  of 
any  claimant  to  an  allotment  of  land  shall  have  the  same 
effect,  when  properly  certified  to  the  Secretary  of  the  Inte- 
rior, as  if  such  allotment  had  been  allowed  and  approved  by 
him ;  but  this  provision  shall  not  apply  to  any  lands  row  or 
heretofore  held  by  either  of  the  Five  Civilized  Tribes,  the 
Osage  Nation  of  Indians,  nor  to  any  of  the  lands  within  the 
Quapaw  Indian  Agency :  Provided,  That  the  right  of  appeal 
shall  be  allowed  to  either  party  as  in  other  cases. 

"Twenty-fifth.  (Of  partition  suits  where  United  States 
is  joint  tenant.)  Of  suits  in  equity  brought  by  any  tenant 
in  common  or  joint  tenant  for  the  partition  of  lands  in  cases 
where  the  United  States  is  one  of  such  tenants  in  common 
or  joint  tenants,  such  suits  to  be  brought  in  the  district  in 
which  such  land  is  situate." 

§  264.  What  Is  "Amount  in  Controversy."  The  statutes 
and  decisions  use  the  terms  interchangeably,  "amount  in  contro- 
versy," "matter  in  dispute,"  "amount  in  dispute." 

By  such  terms  are  meant  either  the  amount  sued  for  in  good 
faith  or  the  value  of  the  property  or  right  involved,  depending 
upon  the  nature  of  the  case. 

Generally  speaking,  when  there  is  a  definite  amount  that  can  be 
determined  as  being  in  dispute  between  the  parties,  this  will  fix 
the  jurisdiction.  But  where  a  particular  matter  of  itself  less 
than  the  jurisdictional  amount  or  value  involves  a  right  or  estate 
as  the  subject  of  the  dispute,  which  right  or  estate  depends  upon 
the  determination  of  the  controversy,  the  value  of  the  right  or 
estate  will  fix  the  jurisdiction. 

Thus,  the  specific  amount  or  value  involved  governs  in  a  suit 
to  enjoin  an  illegal  property  tax,  the  amount  of  the  tax ;  *  or  to  re- 
move as  a  cloud  on  title  a  claim  for  a  specified  amount5  or  enforce 

•*  Douglas  Co.  v.  Stone,  191  U.  S.  557,  48  L.  ed.  301,  24  Sup.  Ct.  Rep.  843; 
Turner  v.  Jackson  Lumber  Co.  159  Fed.  926,  87  C.  C.  A.  106;  Purnell  v. 
Page,  128  Fed.  496. 

5  Cooper  v.  Preston,  105  Fed.  403. 


§    265  AMOUNT    IN    CONTROVERSY  159 

a  lien,6  or  partition  of  a  specified  interest,7  or  to  obtain  specific  per- 
formance of  contract.8 

But  there  are  many  cases  where  a  specific  amount  or  value 
does  not  measure  the  amount  or  value  of  the  matter  in 
controversy,  but  the  value  of  the  object  to  be  obtained  and  right 
to  be  protected,  controls.  For  instance,  the  maintenance  of  a 
schedule  rate,9  preventing  the  establishment  of  a  new  schedule,10 
the  property  right  of  board  of  trade  in  its  market  quotations ;  n 
prevention  of  ticket  scalping;  12  enforcement  of  a  joint  interest  in 
a  fund  as  on  the  dissolution  of  a  partnership  or  corporation,13 
suit  to  quiet  title  or  to  remove  cloud  from  title,  where  the  value 
of  the  land  is  generally  the  determining  element.14 

If  the  matter  in  controversy  has  no  pecuniary  measure,  the 
Federal  courts  can  take  no  jurisdiction,  as  in  habeas  corpus  pro- 
ceedings by  a  father  to  obtain  possession  of  his  infant  child,16  or  an 
action  for  divorce,  alimony  being  within  the  discretion  of  the 
court.16 

§  265.  Amount  Stated  in  Declaration  or  Bill  Controls  Un- 
less Pleaded  Erroneously  or  in  Bad  Faith.  If  the  sum  de- 
manded is  so  manifestly  fictitious  as  to  make  it  legally  certain 
that  the  amount  alleged  was  only  to  get  jurisdiction  and  is  not 
the  real  amount  in  controversy,  the  court  will  dismiss.17  The 

6  Stillwell   &   Bierce   &   S.   V.   Co.   v.   Williamson   Oil   &   Fertilizer   Co.   80 
Fed.  68. 

7  Rich  v.  Bray,  37  Fed.  276,  2  L.R.A.  225. 

8  Johnston  v.  Trippe,  33  Fed.  530. 

9  Texas  &  P.  R.   Co.  v.  Kuteman,   54  Fed.  547,  4  C.  C.  A.  503,   13   U.   S. 
App.  99. 

10  Northern  P.  R.  Co.  v.  Pacific  Coast,  etc.  Asso.  165  Fed.  2,  91  C.  C.  A.  39; 
Chesapeake    &    D.    Canal    Co.    v.    Gring,    159    Fed.    662,    86    C.    C.    A.    530; 
Southern  P.  Co.  v.  Bartine,  170  Fed.  725. 

n  Board  of  Trade  v.  Cella  Commission  Co.  145  Fed.  28,  76  C.  C.  A.  28; 
John  D.  Park  &  Sons  Co.  v.  Hartman,  153  Fed.  24,  82  C.  C.  A.  158,  12  L.R.A. 
(N.S.)  135. 

12  Nashville,  C.  &  St.  R.  R.  Co.  v.  McConnell,  82  Fed.  65;  Delaware,  L.  & 
W.  R.  Co.  v.  Frank,  110  Fed.  689. 

18  Kent  v.  Honsinger,  167  Fed.  620;  Taylor  v.  Decatur  Mineral  &  Land  Co. 
112  Fed.  449. 

14  Holland  v.  Challan,   110  U.  S.   15,  28  L.  ed.  52,  3   Sup.   Ct.   Rep.  594; 
Smith  v.  Adams,  130  U.  S.  167,  32  L.  ed.  895,  9  Sup.  Ct.  Rep.  566. 

15  Ex  parte  Everts,  1  Bond,  197,  8  Fed.  Gas.  No.  4,581,  7  Amer.  Law  Reg.  79. 

16  Bowman  v.  Bowman,  30  Fed.  849. 

17  Jones  v.   McCormick   Harvester   Machine   Co.   82   Fed.   295,   27    C.   C.   A. 
133,  53  U.  S.  App.  408;  Battle  v.  Alkinson,  115  Fed.  384. 


160         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  268 

same  is  true  where  it  appears  from  the  nature  of  the  case  stated 
in  the  pleadings  that  there  could  not  legally  be  a  judgment  for 
an  amount  necessary  to  the  jurisdiction.  Thus,  where  a  demand 
for  one  thousand  dollars  was  alleged  to  be  the  value  of  certain 
property,  and  in  addition  ten  thousand  dollars  damages  was 
claimed,  the  court  reached  the  conclusion  that  the  claim  for 
damages  could  not  be  sustained  as  a  matter  of  law,  and  the  suit 
was  dismissed.18 

§  266.  Amount  in  Controversy  Includes  What.  The  stat- 
ute says,  "Exclusive  of  interest  and  costs."  Hence,  items  of  ex- 
pense in  connection  with  a  cause  of  action  cannot  be  included 
unless  the  contract  sued  on  covers  same.19  Attorneys'  fees  may  be 
added  when  a  part  of  the  contract.20  But  where  a  statute  makes 
attorneys'  fees  a  part  of  the  costs,  they  may  not  be  considered.81 
A  suit  on  a  bond  and  matured  interest  coupons  which  are  no  longer 
a  mere  incident  of  the  principal  indebtedness  but  have  become  a 
principal  obligation,  will  give  the  jurisdictional  amount.22 

§  267.  Effect  of  Valid  Set-Off  or  Payment.  A  party,  in 
alleging  the  amount  of  his  claim,  is  presumed  to  know  of  any 
payments  made  on  the  claim  or  valid  set-offs  existing  against  it, 
and  hence  if  such  payment  or  set-off  appears  from  the  record  un- 
disputed the  court  will  not  have  jurisdiction.23  But  if  the  pay- 
ment or  set-off  is  disputed  the  mere  pleading  thereof  will  not  de- 
feat the  claim,  because,  as  the  court  says,  "who  can  say  in  advance 
that  the  defense  will  be  insisted  on,  or,  if  presented,  would  be  sus- 
tained by  the  court  ?  "  24 

§  268.  Aggregating  Amounts  to  Create  Jurisdiction. 
If  the  claims  are  joint  claims,  they  may  be  aggregated  to  create 

"Vance  v.  Vandercook  Co.  170  U.  S.  468,  42  L.  ed.  1111,  18  Sup.  Ct. 
Rep.  645. 

19  Less  v.  English,  85  Fed.  471,  29  C.  C.  A.  275,  56  U.  S.  App.  16. 

20  Rogers    v.    Riley,    80    Fed.    762;     Swofford    v.    Cornucopia    Mines,    140 
Fed.  958. 

21  Peters  v.  Queen  Ins.  Co.  182  Fed.  113. 

22  Edwards  v.  Bates  Co.  163  U.  S.  269.  41  L.  ed.  155,  16  Sup.  Ct.  Rep.  967. 

23  Bedford  Quarries  Co.  v.  Welch.  100  Fed.  513. 

24Schunk  v.  Moline  M.  &  S.  Co.  147  U.  S.  500,  37  L.  ed.  255,  13  Sup. 
Ct.  Rep.  416. 


§    271  AMOUNT    IN    CONTROVERSY  161 

the  jurisdictional  amount,25  but  not  if  they  are  separable.26  So, 
also,  an  assignee  of  several  claims  against  single  defendant  may 
sue  in  the  Federal  court,  provided  the  several  assignors  had  the 
requisite  diversity  of  citizenship  necessary  to  confer  jurisdiction. 
This  is  so  even  though  the  claim  of  each  assignor  was  less  than 
the  jurisdictional  amount.27 

§  269.  Amendment  to  Show.  Amendments  are  permitted 
to  show  jurisdictional  allegations,  and  this  is  true  of  the. allega- 
tions as  to  the  amount  in  controversy  when  the  facts  warrant  such 
an  amendment.28 

§  270.  State  Statutes  Do  Not  Control  as  to  Splitting  De- 
mands. The  general  rule  that  the  Federal  court  will  not  follow 
the  state  laws  and  decisions  in  matters  which  affect  their  jur- 
isdiction applies  to  a  state  statute  requiring  demands  to  be  split 
up  into  separate  suits,  which  would  defeat  the  jurisdiction  of  the 
court  by  reducing  the  demand  below  the  jurisdictional  amount.29 

§  271.  Raising    Issue    as    to    Amount    or    Good    Faith. 

The  issue  as  to  the  amount  in  controversy,  when  it  appears  from 
the  face  of  the  record  as  a  matter  of  law  that  the  proper  amount 
is  not  involved,  may  be  raised  in  equity  suits  under  Equity  Rule 
29,  by  a  motion  to  dismiss  or  in  the  answer,  and  at  law  by  de- 
murrer or  other  appropriate  pleading  authorized  by  state  statutes. 
Where  such  defect  does  not  appear  from  the  face  of  the  record, 
the  objection  should  be  made  under  Equity  Rule  29  in  the  answer 
when  it  may  be  separately  heard.  In  an  action  at  law  objection 
would  be  by  a  plea  or  other  appropriate  pleading  under  the  state 
practice. 

25  Holt  v.  Bergevin,  60  Fed.  2. 

28  Jones  v.  Mutual  Fidelity  Co.  123  Fed.  510. 

27Bowden  v.  Burnham,  59  Fed.  752,  8  C.  C.  A.  248;  Bernheim  v.  Birnbaum, 
30  Fed.  885;  Davis  v.  Mills,  99  Fed.  39. 

28  Bowden  v.  Durnham,  59  Fed.  754.  8  C.  C.  A.  249,  19  U.  S.  App.  448. 

29O'Connell  v.  Reed,  56   Fed.  531,  5   C.  C.  A.  586;   Tfxas,  etc.,  R.  Co.  v. 
Gentry,  163  U.  S.  353,  41  L.  ed.  186,  16  Sup.  Ct.  Rep.  1104. 
Montg. — 11. 


162         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  271 

Raising  the  issue  of  "amount"  as  a  matter  of  law,  the  following 
allegation  is  suggested: 

"Defendant  alleges  that  it  appears  on  the  face  of  the  bill  of  complaint  that 
this  case  does  not  really  and  substantially  involve  a  dispute  or  controversy 
properly  within  the  jurisdiction  of  the  court,  in  that  the  matter  in  contro- 
versy, as  appears  from  the  bill  of  complaint,  does  not  exceed  the  sum  or 
value  of  three  thousand  dollars  exclusive  of  interest  and  costs." 

If  the  issue  is  as  to  goooVfaith,  the  following  allegation  may  be 
used : 

"That  this  suit  does  not  really  and  substantially  involve  a  dispute  or 
controversy  properly  within  the  jurisdiction  of  this  court  in  that  the  amount 
sued  for  as  alleged  in  the  complaint  is  not  truly  stated  and  is  not  alleged  in 
good  faith,  and  defendant  alleges  that  the  matter  in  controversy  does  not 
exceed  the  sum  or  value  of  three  thousand  exclusive  of  interest  and  costs." 


CHAPTEK  10. 

REMOVAL  OF   CAUSES— JURISDICTION  AND  PROCEDURE. 

Sec. 

285.  In  General. 

286.  Jurisdiction — First  Four  Classes  of  Removal  Cases. 

287.  Class  One;   Removal  by  Defendant  or  Defendants  on  Ground  of  Federal 

Question. 

288.  Class  Two;  Removal  by  Nonresident  Defendant  or  Defendants  on  Ground 

of   Diverse   Citizenship. 

289.  Class  Three;  Removal  of  a  Separable  Controversy  Wholly  between  Citi- 

zens of  Different   States. 

290.  Procedure   on   Removal — Class   One,   Two,   and   Three — Petition   for   Re- 

moval to  be  Filed  before  Appearance  Day  in  State  Court. 

291.  Bond  on  Removal  in  Classes  One,  Two,  and  Three. 

292.  Duty  of  State  Court  in  Such  Cases. 

293.  Notice  to  Adverse  Party  in  Such  Cases. 

294.  Procedure  after  Removal  in  Classes  One,  Two,  and  Three. 

295.  Class  Four;  Removal  on  Ground  of  Prejudice. 

296.  Remanding  Separable  Controversy  in  Class  Four. 

297.  Remanding  upon   Failure  to   Show   Prejudice — Class   Four. 

298.  Remanding  in  Classes  One,  Two,  Three,  and  Four. 

299.  Common    Carrier   Employer's   Liability   Cases   Not   Removable,    Nor   for 

Property  Damages,  unless  $3,000  Involved. 

300.  Class  Five;   Suits  between  Citizens  of  a  State  under  Land  Grants  from 

Different  States. 

301.  Class  Six;   Removal  of  Suits  of  Aliens  against  Officers. 

302.  Class  Seven;   Removal  Civil  Rights  Cases. 

303.  Habeas  Corpus  Proceedings  where  Civil  Rights  Denied,  and  Other  Cases. 

304.  Class    Eight;    Removal    in    Cases    against    Revenue    and    Congressional 

Officers. 

305.  Procedure  on  Removal  under   Class  Eight — Cases   against  Revenue  and 

Congressional  Officers. 

306.  Procedure  after  Removal  in  Class  Eight. 

307.  Certiorari  and  Habeas  Corpus  Proceedings  in  Class  Eight — Suits  against 

Revenue  and  Congressional  Officers. 

308.  Proofs  of  Records  When  Copies  Refused  by  State  Court  Clerks. 

309.  Enforcement  of  Return  of  Record  from  State  to  Federal  Courts. 

310.  Remand  or  Dismissal  of  Case  Fraudulently  or  Improperly  Removed. 

311.  Provisional   Remedies  of  State  Court  Preserved — Bonds  Given  in  State 

Suit — Valid  on  Removal. 

312.  Proceedings  after  Removal — Generally. 

163 


104        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  285 

§  285.  In  General.  There  are  eight  classes  of  cases  in  which 
there  may  be  a  removal  from  the  state  to  the  Federal  court. 

Cases  arising  under  the  employers'  liability  act  are  specifically 
denied  removal  in  the  closing  paragraph,  §  28,  Judicial  Code, 
quoted  in  §  299,  following. 

Class  one  includes  cases  involving  a  Federal  question.  These 
may  be  removed  by  the  defendant  or  defendants  therein  without 
regard  to  his  or  their  residence.1 

Class  two  includes  cases  based  on  diverse  citizenship.  These 
may  be  removed  by  a  nonresident  defendant  or  defendants.2 

Class  three  includes  separable  controversies  between  citizens 
of  different  states  of  either  classes  one  or  two.  Thus  any  defend- 
ant with  a  separable  controversy  based  on  a  Federal  question,  or 
any  nonresident  defendant  relying  on  diverse  citizenship  and  with 
a  separable  controversy,  may  remove.3 

The  procedure  is  the  same  for  classes  one,  two,  and  three.4 

Class  four  includes  cases  between  a  citizen  of  a  state  and  a 
citizen  of  another  state,  where  such  nonresident  defendant  may 
remove  on  the  ground  of  prejudice  or  local  influence.5  The  time 
for  removal  6  and  procedure  in  this  class  of  cases  differs  from 
that  in  the  first  three  classes  of  cases.7 

All  four  classes  of  cases  may  be  remanded  to  the  state  court  if 
improperly  removed,  either  under  §  28  8  or  §  37,9  Judicial  Code. 

Class  five  includes  cases  between  citizens  of  the  same  state 
claiming  under  land  grants  from  different  states.  These  are 
removable  by  either  party  under  §  30,  Judicial  Code,  and  must 
involve  $3,000  exclusive  of  interest  and  costs,  although  such 
amount  is  not  required  to  give  the  Federal  court  original  jurisdic- 
tion.10 

Class  six  includes  cases  removable  by  defendant  nonresident 

civil  officers  in  suits  brought  against  them  by  aliens  under  §  34, 

T  j-  •  i  ruj    11 

Judicial  Code. 

Class  seven  includes  cases  arising  under  the  civil  rights  laws. 

1  §  287,  infra.  2  §  288,  infra.  3  §  289,  infra. 

4  §§  290-1-2-3-4,  infra.  «  §  295.  infra.  6  Ibid. 

•?§§  295-296.  infra.  8  §  £98,  infra.  »§  310,  infra. 

10  §  300,   infra.  "  §  301,  infra. 


§    286  REMOVAL    OF    CAUSES JURISDICTION    AND    PROCEDURE      165 

These  are  removable  by  a  defendant  denied  such  civil  rights  under 
§  31,  Judicial  Code.12 

Class  eight  includes  cases  against  revenue  or  congressional  of- 
ficers. These  cases  may  be  removed  by  them  at  any  time  before 
trial.13 

There  are  general  provisions  respecting  proofs  of  state  court 
records  where  copies  are  refused  by  the  clerks  of  such  court ; 14 
for  enforcing  the  return  of  the  record  from  the  state  court ;  15  for 
preserving  on  removal  attachment  and  sequestration  liens,  injunc- 
tional  orders,  bonds  and  undertakings,16  and  for  proceedings  after 
removal.17  Kemanding  cases  fraudulently  or  improperly  re- 
moved, lacking  jurisdictional  grounds,  may  be  done  under  §  37, 
Judicial  Code.18 

The  changes  made  in  the  practice  by  the  Judicial  Code  are  very 
few.  It  is  now  required  under  §  29,  Judicial  Code,  what  before 
was  the  general  practice,  that  the  petition  for  removal  be  verified.19 
The  bond  for  removal  is  now  conditioned  to  enter  in  the  district 
court  "within  thirty  days  from  the  date  of  filing  said  petition,  a. 
certified  copy  of  the  record,  etc.,"  20  where  formerly  the  condi- 
tion was  to  enter  suit  "on  or  before  the  first  day  of  the  next  reg- 
ular session."  The  old  practice  of  giving  notice  is  now  obligatory 
under  §  29,  Judicial  Code,  requiring  "written  notice  of  said  peti- 
tion and  bond"  prior  to  filing  same.21 

The  forms  given  in  this  chapter  are  adapted  from  Desty's  Fed- 
eral Procedure. 

§  286.  Jurisdiction — First  Four  Classes  of  Removal  Cases. 
§  28,  Judicial  Code?  36  Stat.  at  L.  1094,  Comp.  St.  1911, 
pp.  1^0,  141,  1912  Supp.  F.  8.  A.  v.  1,  pp.  144-5.  "(Re- 
moval of  suits  from  state  to  United  States  district  courts.) 
Any  suit  of  a  civil  nature,  at  law  or  in  equity,  arising  under 
the  Constitution  or  laws  of  the  United  States,  or  treaties 
made,  or  which  shall  be  made,  under  their  authority,  of  which 
the  district  courts  of  the  United  States  are  given  original  ju- 
risdiction by  this  title,  which  may  now  be  pending  or  which 

12  §  302,  infra.          W  §  304,  infra.  "  §  308,  infra.          «  §  309,  infra. 

16  §  311,  infra.          "  §  812,  infra.          "  §  310,  infra.          "  §  290,  infra. 
20  §  291.  infra.  «  §  293,  infra. 

a  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  c,  ante,  our  §  221. 


166        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  286 

may  hereafter  be  brought,  in  any  state  court,  may  be  re- 
moved by  the  defendant  or  defendants  therein  to  the  district 
court  of  the  United  States  for  the  proper  district.  Any 
other  suit  of  a  civil  nature,  at  law  or  in  equity,  of  which  the 
district  courts  of  the  United  States  are  given  jurisdiction 
by  this  title,  and  which  are  now  pending  or  which  may  here- 
after be  brought,  in  any  state  cotirt,  may  be  removed  into 
the  district  court  of  the  United  States  for  the  proper  district 
by  the  defendant  or  defendants  therein,  being  nonresidents 
of  that  state.  And  when,  in  any  suit  mentioned  in  this  sec- 
tion, there  shall  be  a  controversy  which  is  wholly  between 
citizens  of  different  states,  and  which  can  be  fully  determined 
as  between  them,  then  either  one  or  more  of  the  defendants 
actually  interested  in  such  controversy  may  remove  said  suit 
into  the  district  court  of  the  United  States  for  the  proper  dis- 
trict. And  where  a  suit  is  now  pending,  or  may  hereafter 
be  brought,  in  any  state  court,  in  which  there  is  a  controver- 
sy between  a  citizen  of  the  state  in  which  the  suit  is  brought 
and  a  citizen  of  another  state,  any  defendant,  being  such 
citizen  of  another  state,  may  remove  such  suit  into  the  dis- 
trict court  of  the  United  States  for  the  proper  district,  at 
any  time  before  the  trial  thereof,  when  it  shall  be  made  to 
appear  to  said  district  court  that,  from  prejudice  or  local  in- 
fluence, he  will  not  be  able  to  obtain  justice  in  such  state 
court,  or  in  any  other  state  court  to  which  the  said  defendant 
may,  under  the  laws  of  the  state,  have  the  right,  on  account 
of  such  prejudice  or  local  influence,  to  remove  said  cause: 
Provided,  That  if  it  further  appear  that  said  suit  can  be 
fully  and  justly  determined  as  to  the  other  defendants  in 
the  state  court,  without  being  affected  by  such  prejudice  or 
local  influence,  and  that  no  party  to  the  suit  will  be  preju- 
diced by  a  separation  of  the  parties,  said  district  court  may 
direct  the  suit  to  be  remanded,  so  far  as  relates  to  such  other 
defendants,  to  the  state  court,  to  be  proceeded  with  therein. 
At  any  time  before  the  trial  of  any  suit  which  is  now  pend- 
ing in  any  district  court,  or  may  hereafter  be  entered  there- 
in, and  which  has  been  removed  to  said  court  from  a  state 
court  on  the  affidavit  of  any  party  plaintiff  that  he  had  rea- 
son to  believe  and  did  believe  that,  from  prejudice  or  local 
influence,  he  was  unable  to  obtain  justice  in  said  state  court, 
the  district  court  shall,  on  application  of  the  other  party, 
examine  into  the  truth  of  said  affidavit  and  the  grounds 
thereof,  and,  unless  it  shall  appear  to  the  satisfaction  of  said 
court  that  said  party  will  not  be  able  to  obtain  justice  in 


§    288   UEMOVAL    OF    CAUSES JURISDICTION    AND    PROCEDURE     167 

said  state  court,  it  shall  cause  the  same  to  be  remanded  there- 
to. Whenever  any  cause  shall  be  removed  from  any  state 
court  into  any  district  court  of  the  United  States,  and  the 
district  court  shall  decide  that  the  cause  was  improperly 
removed,  and  order  the  same  to  be  remanded  to  the  state 
court  from  whence  it  came,  such  remand  shall  be  immediate- 
ly carried  into  execution,  and  no  appeal  or  writ  of  error  from 
the  decision  of  the  district  court  so  remanding  such  cause 
shall  be  allowed:  Provided,  That  no  case  arising  under  an 
act  entitled,  "An  Act  Relating  to  the  Liability  of  Common 
Carriers  by  Railroad  to  Their  Employees  in  Certain  Cases," 
approved  April  twenty-second,  nineteen  hundred  and  eight, 
or  any  amendment  thereto,  and  brought  in  any  state  court 
of  competent  jurisdiction,  shall  be  removed  to  any  court  of 
the  United  States." 

§  287.  Class  One;  Removal  by  Defendant  or  Defendants 
on  Ground  of  Federal  Question. 

Cl.  1,  §  28,  Judicial  Code*  (above  quoted  in  full)  36 
8tat.  at  L.  1094,  Comp.  81.  1911,  p.  140,  1912  Supp.  F.  8. 
A.  v.  1,  p.  144-  "Any  suit  of  a  civil  nature,  at  law  or  in 
equity,  arising  under  the  Constitution  or  laws  of  the  United 
States,  or  treaties  made,  or  which  shall  be  made,  under 
their  authority,  of  which  the  district  courts  of  the  United 
States  are  given  original  jurisdiction  by  this  title,  which 
may  now  be  pending  or  which  may  hereafter  be  brought,  in 
any  state  court,  may  be  removed  by  the  defendant  or  defend- 
ants therein  to  the  district  court  of  the  United  States  for 
the  proper  district." 

§  288.  Class  Two ;  Removal  by  Nonresident  Defendant  or 
Defendants  on  Ground  of  Diverse  Citizenship. 

Cl  2,  §  28,  Judicial  Code,0  36  8 tat.  at  L.  1094,  Comp.  St. 
1911,  pp.  140, 141,  1912  Supp.  F.  8.  A.  v.  1,  p.  144-  ".  .  . 
Any  other  suit  of  a  civil  nature,  at  law  or  in  equity,  of  which 
the  district  courts  of  the  United  States  are  given  jurisdic- 
tion by  this  title,  and  which  are  now  pending  or  which  may 
hereafter  be  brought,  in  any  state  court,  may  be  removed  in- 
to the  district  court  of  the  United  States  for  the  proper  dis- 
trict by  the  defendant  or  defendants  therein,  being  nonresi- 
dents of  that  state.  .  .  ." 

b  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  c,  ante,  our  §  221. 
«  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  «,  ante,  our  §  221. 


168        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  289 

§  289.  Class  Three ;  Removal  of  a  Separable  Controversy 
Wholly  between  Citizens  of  Different  States.  Any  defend- 
ant or  defendants  with  a  separable  controversy  wholly  between 
citizens  of  different  states  may  remove  same  from  the  state  to 
the  Federal  court,  in  cases  of  which  the  district  court  might 
have  taken  jurisdiction  originally  on  the  ground  of  a  Federal 
question.  Likewise  any  nonresident  defendant  or  defendants 
may  remove  his  or  their  separable  controversies  where  the  district 
courts  might  have  taken  jurisdiction  originally  on  account  of 
diverse  citizenship.  (Aliens  may  not  remove  a  separable  contro- 
versy.) Both  classes  of  cases  are  included  in  the  following  stat- 
utory provision : 

Cl  3,  §  28,  Judicial  Code*  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  141,  1912  Supp.  F.  S.  A,  v.  1,  p.  144-  ".  .  •  And 
when  in  any  suit  mentioned  in  this  section  there  shall  be  a 
controversy  which  is  wholly  between  citizens  of  different 
states,  and  which  can  be  fully  determined  as  between  them, 
then  either  one  or  more  of  the  defendants  actually  interested 
in  such  controversy  may  remove  said  suit  into  the  district 
court  of  the  United  States  for  the  proper  district.  .  .  ." 

To  constitute  a  separable  controversy,  the  case  must  be  one 
capable  of  separation  into  parts,  so  that  in  one  of  the  parts  a  con- 
troversy will  be  presented  with  citizens  of  one  or  more  states, 
on  one  side,  and  citizens  of  other  states,  on  the  other,  which 
can  be  fully  determined  without  the  presence  of  the  other  parties 
to  the  suit  as  it  has  been  begun.22  It  must  appear  from  the  record 
that,  upon  the  allegation  of  plaintiff's  petition,  there  arises  in  the 
cause  a  controversy  capable  of  separation  from  the  other  issues 
or  questions  presented  by  the  petition,  which,  when  separated, 
would  be  between  citizens  of  different  states.28  When  the  cause 
of  action  is  single,  the  fact  that  different  defendants  have  dif- 

22  Eraser  v.  Jennison,  106  U.  S.  191,  27  L.  ed.  131,  1  Sup.  Ct.  Rep.  171 ; 
Avers  v.  Wiswall,  112  U.  S.  187.  28  L.  ed.  693,  5  Sup.  Ct.  Rep.  90. 

'23  Stanbrough  v.  Cook,  38  Fed.  369,  3  L.R.A.  400;  Earth  v.  Coler.  19 
U.  S.  App.  646,  9  C.  C.  A.  81,  60  Fed.  466;  Thurber  v.  Miller,  14  C.  C.  A. 
432,  67  Fed.  371. 

d  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  <•,  ante,  our  §  221. 


§    289  KEMOVAL    OF    CAUSES— JURISDICTION    AND    PROCEDURE     109 

ferent  defenses  does  not  create  separable  controversies.2*  In  Bates 
v.  Carpentier,  98  Fed.  452,  the  court  said  "that,  in  order  to 
justify  a  removal  of  a  cause  on  the  ground  of  a  separate  C^N- 
troversy  between  citizens  of  different  states,  the  whole  subject- 
matter  of  the  suit  must  be  capable  of  being  finally  determined 
as  between  them,  and  complete  relief  afforded  as  to  the  separate 
causes  of  action,  without  the  presence  of  others,  originally  made 
parties  to  the  suit."  In  Goldsmith  v.  Gilliland,  24  Fed.  154,  10 
Sawy.  606,  it  was  decided  that  a  suit  to  quiet  title  to  real  property 
presented  a  subject-matter  capable  of  such  separable  determina- 
tion, and,  "where  a  number  of  persons  claim  undivided  interests 
in  real  property  adversely  to  one  in  possession  of  the  same,  the 
latter  may  maintain  a  suit  to  quiet  his  title  against  any  or  all 
of  such  claims,  and  neither  of  said  persons  or  adverse  claimants 
is  a  necessary  party  to  a  suit  for  that  purpose  against  the  other." 
Where  an  action  is  brought  by  one  plaintiff  against  several  defend- 
ants, not  because  they  claim  any  joint  interest  or  are  subject 
to  any  joint  liability  in  respect  to  the  subject-matter  of  the  ac- 
tion, but  merely  for  convenience,  it  will  generally  be  capable  of 
resolution  into  separable  controversies  between  the  plaintiff  and 
the  individual  defendants.25  A  bill  in  equity  to  quiet  title  to 
real  property,  brought  under  the  above  conditions,  has  been  decided 
to  include  a  separable  controversy  with  each  of  the  defendants,  so 
that,  if  one  of  them  is  a  nonresident,  he  may  remove  the  suit.26 
The  fact  that  separate  answers  are  filed,  which  raise  separate  issues - 
in  defending  against  one  cause  of  action,  does  not  create  sep- 
arable controversies,  within  the  meaning  of  that  term  as  used 
in  the  statute.  They  simply  present  different  questions  to  be 
settled  in  determining  the  rights  of  the  parties  in  respect  to  the 
one  cause  of  action  for  which  the  suit  was  brought.27  In  Shain- 

24  Rohbins  v.  Ellenbogen,  71   Fed.  4,  18  C.  C.  A.  83. 

25  Black,  Dill,  Rem.  Causes,  par.  148:   Bates  v.  Carpentier,  98  Fed.  452. 

26  Field    v.    Lownsdale,    Deady,    288,    Fed.    Gas.    No.    4,769;    Goodenough    v. 
Warren.  5  Sawy.  494,  Fed.  Cas.  No.  5,534;   Stanbrough  v.  Cook,  38  Fed.  3<>9, 
3  L.R.A.  400. 

27  Hyde  v.   Ruble.  104  U.  S.   407,   26  L.  ed.  823;    Winchester  v.   Loud,   108 
U.  S.  130,  27  L.  ed.  677,  2  Sup.  Ct.  Rep.  311;  Shainwald  v.  Lewis,  108  U.  S. 
158,  27  L.  ed.  691.  2  Sup.  Ct.  Rep.  385;  Deposit  Co.  v.  Huntington,  117  U.  S. 
280,  29  L.  ed.  8D8,  6  Sup.  Ct.  Rep.  733;  Graves  v.  Corbin,  132  U.  S.  571,  33 
L.  ed.  402,  10  Sup.  Ct.   Rep.   196;   Torrence  v.  Shedd,  144  U.  S.  527,  36  L. 
ed.  528,  12  Sup.  Ct.  Rep.  726. 


170        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEIU'KK      §   ::'s'.» 

wald  v.  Lewis,  108  U.  S.  158,  27  L.  ed.  691,  2  Sup.  Ct.  Rep.  385, 
the  suit  was  brought  for  the  dissolution  and  settlement  of  an  al- 
leged partnership.  The  court  said  there  was  no  separable  or 
removable  controversy.  "The  main  dispute,"  said  the  court,  "is 
about  the  existence  of  the  partnership.  All  the  other  questions 
in  the  case  are  dependent  on  that.  If  the  partnership  is  estab- 
lished, the  rights  of  the  defendants  are  to  be  settled  in  one  way ; 
if  not,  in  another.  There  is  no  controversy  in  the  case  which  now 
can  be  separated  from  that  about  the  partnership,  and  fully  de- 
termined by  itself."  In  Deposit  Co.  v.  Huntington,  117  U.  S. 
280,  29  L.  ed.  898,  6  Sup.  Ct.  Rep.  733,  the  suit  was  a  creditors' 
bill  to  subject  encumbered  property  to  the  payment  of  the  creditors' 
judgment,  by  sale  and  distribution  of  the  proceeds  among  lien  hold- 
ers according  to  their  priority.  One  lien  holder  sought  to  remove 
the  suit,  as  to  him,  to  a  United  States  court,  upon  the  ground  that 
as  to  him  there  was  a  wholly  separable  controversy.  The  court 
said :  "There  is  but  a  single  cause  of  action,  and  that  is  the  equit- 
able execution  of  a  judgment  against  the  property  of  the  judgment 
debtor.  This  cause  of  action  is  not  divisible.  Each  of  the  defend- 
ants may  have  a  separate  defense  to  the  action,  but  we  have  held 
many  times  that  separate  defenses  do  not  create  separate  contro- 
versies, within  the  meaning  of  the  removal  act."  In  Graves  v. 
Corbin,  132  U.  S.  571,  33  L.  ed.  528,  12  Sup.  Ct.  Rep.  726, 
the  suit  was  a  bill  in  equity  filed  in  a  state  court  by  a  judgment 
creditor  of  a  partnership  to  reach  its  entire  property.  Certain 
judgments  confessed  by  the  firm,  on  which  levies  had  been  made, 
were  attached  for  fraud.  One  of  the  judgment  creditors  re- 
moved the  cause  to  the  circuit  court  upon  the  ground  that  as  to 
him  there  was  a  separable  controversy.  After  a  final  decree  for 
the  plaintiff,  the  supreme  court,  on  an  appeal  therefrom,  held 
that  the  case  was  not  removable.  A  suit  to  try  title  to  land  is  not 
a  separable  controversy.28  An  action  to  foreclose  a  mortgage 
where  there  are  several  defendants  is  not  a  separable  controversy.29 
The  rule  as  illustrated  by  these  cases  in  concise  form  is  that  if  a 
nonresident  party  has  an  interest  in  a  controversy  which  is  sepa- 

28  Lomax  v.  Foster  Lumber  Co.  99  C.  C.  A.  463,  174  Fed.  959. 

29  Thompson  v.  Dixon,  28  Fed.  6. 


§    289    REMOVAL    OF    CAUSES JURISDICTION    AND    PROCEDURE    171 

rate  and  distinct,  and  does  not  necessarily  involve  the  interest  of 
the  other  defendants  in  the  issue,  or  the  other  party  on  the  same 
side,  he  can  remove  the  whole  case  into  the  Federal  court.  On  the 
otlier  hand,  if  the  interests  of  the  other  party  are  so  identified 
and  so  mixed  up  that  they  must  and  should  be  decided  together, 
and  depend  on  the  final  decree,  which  must  depend  upon  and  in- 
volve the  rights  of  both  parties,  then  it  cannot  be  removed  when 
one  of  the  parties  is  a  citizen  of  the  same  state  with  the  plaintiff 
or  defendant.80  Another  class  of  cases  in  which  the  question  of 
separable  controversy  arises  is  where  there  is  a  joint  and  several 
H'lfi-ility.  Where  the  plaintiff's  cause  of  action  is  joint  and 
several,  he  has  the  option  whether  to  sue  the  defendants  individu- 
ally or  to  join  them  in  one  action.  If  he  elects  to  pursue  the 
latter  course,  his  choice  determines  the  character  of  the  suit,  and 
no  one  of  the  defendants  can  treat  the  suit  as  it  concerns  him  as 
several,  for  the  purpose  of  a  removal  to  the  Federal  court.81  In 
Pirie  v.  Tvedt,  115  U.  S.  41,  29  L.  ed.  331,  5  Sup.  Ct.  Rep.  1034, 
the  court  said :  "The  cause  of  action  is  several  as  well  as  joint, 
and  the  plaintiffs  might  have  sued  each  defendant  separately, 
or  all  jointly.  It  was  for  the  plaintiffs  to  elect  which  course  to 
pursue.  They  did  elect  to  proceed  against  all  jointly,  and  to  this 
defendants  are  not  permitted  to  object.  The  fact  that  a  judg- 
ment in  the  action  may  be  rendered  against  a  part  of  the  de- 
fendants only  does  not  divide  a  joint  action  in  tort  into  sepa- 
rate parts,  any  more  than  it  does  a  joint  action  in  contract."  A 
defendant  has  no  right  to  say  that  an  action  shall  be  several  which 
the  plaintiff  elects  to  make  joint.  A  separate  defense  may  de- 

30  Wilson  v.  St.  Louis,  etc.,  Ry.  Co.  22  Fed.  3,  Affirmed  St.  Louis,  etc.,  Ry. 
Co.  v.  Wilson,  114  U.  S.  60,  29  L.  ed.  66,  5  Sup.  Ct.  Rep.   738;    Central  R. 
Co.  v.  Mills,  113  U.  S.  249,  28  L.  ed.  949,  5  Sup.  Ct.  Rep.  456;   Louisville  & 
N.  R.  Co.  v.  Ide,  114  U.  S.  52,  29  L.  ed.  63,  5  Sup.  Ct.  Rep.  735;  Putnam  v. 
Ingraham,  114  U.  S.  57,  29  L.  ed.  65,  5   Sup.  Ct.  Rep.  746;   Pirie  v.  Tvedt. 
115  U.  S.  41,  29  L.  ed.  331,  5  Sup.  Ct.  Rep.  1034;   Crump  v.  Thurber,   115 
U.  S.  56,  29  L.  ed.  328,  5  Sup.  Ct.  Rep.  1154;  Price  v.  Foreman,  11  Biss.  328, 
1-2    Fed.  801;    Mitchell  v.  Tillotson,   11   Biss.  325,   12  Fed.  737;   Winchell  v. 
Carli.   24   Fed.  865. 

31  Black,    Dill,    Rem.    Causes,    par.    145 :    Brown    v.   Coxe    Bros.    &    Co.    75 
Fed.    689;    Boyd    v.    Gill,    19    Fed.    145,    21    Blatchf    543;    Telegraph    Co.    v. 
Brown,  32  Fed.  337:  Mutual  Reserve  Fund  Life  Ass'n  v.  Farmer.  23  C.  C.  A. 
574,  77  Fed.  929:  Railroad  Co.  v.  Ide,  114  U.  S.  52,  29  L.  ed.  63,  5  Sup.  Ct. 
Rep.  735;  Pirie  v.  Tvedt,  115  U.  S.  41,  29  L.  ed.  331,  5  Sup.  Ct.  Rep.  1034: 
Little  v.  Giles,  118  U.  S.  596,  30  L.  ed.  269,  7  Sup.  Ct.  Rep.  32;   Torrence 
v.  Shedd,  144  U.  S.  527,  36  L.  ed.  528,  12  Sup.  Ct.  Rep.  726. 


172        M".N T<;<» MICKY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  290 

lent  a  joint  recovery,  but  it  cannot  deprive  a  plaintiff  of  his 
right  to  prosecute  his  own  suit  to  final  determination  in  his  own 
way.  The  cause  of  action  is  the  subject-matter  of  the  con- 
troversy; and  that  is  for  all  purposes  of  the  suit,  whatever  the 
plaintiff  declares  it  to  be  in  his  pleadings.38  And  if  a  per- 
son has  a  cause  of  action  on  which  he  may  properly  sue  either 
one  or  two  parties,  and  he  chooses  to  sue  both,  he  may  do  so 
though  his  motive  in  joining  them  is  to  prevent  a  removal  to  a 
Federal  court.  That  is,  the  motive  is  not  considered.88  In  this 
case,  Deere,  Wells  &  Co.  v.  Chicago,  M.  &  S.  V.  Ry.  Co.  85  Fed. 
876,  it  was  held  that  an  action  fo/  damages  against  a  railroad 
company  incorporated  by  another  state,  and  one  of  its  section 
foremen,  who  is  a  citizen  of  the  same  state  with  plaintiff,  charging 
them  jointly  with  setting  out  a  fire  on  the  railroad  right  of  way  to 
clear  it  of  dry  grass  and  weeds,  and  negligently  permitting  it  to 
spread  to  plaintiff's  premises,  does  not  disclose  a  separable  con- 
troversy which  would  enable  the  railroad  company  to  remove  the 
cause.  In  one  action  against  a  railroad  company  for  negligence 
in  handling  a  train  and  against  a  Pullman  company  for  negligence 
in  constructing  the  berth  out  of  which  the  plaintiff  was  thrown, 
the  court  said.:  "In  the  first  count  of  the  declaration  there  is  a 
separate  and  distinct  cause  of  action  stated  against  each  one  of  the 
defendants,  and  neither  one  of  the  defendants  could  be  held  liable 
on  the  facts  specifically  averred  against  the  other."  The  contro- 
versy is  separable. 

§  290.  Procedure  on  Removal — Class  One.  Two,  and 
Three — Petition  for  Removal  to  be  Filed  before  Appearance 
Day  in  State  Court. 

Cl.  1,  §  29,  Judicial  Code,*  36  Stat.  at  L.  1095,  Comp.  St. 
1911,  p.  142,  1912  Supp.  F.  S.  A.  v.  1,  p.  145.    "Whenever 

32  Railroad  Co.  v.  Ide.  supra;  Sloane  v.  Anderson.  117  U.  S.  275,  29  L. 
ed.  899.  6  Sup.  Ct.  Rep.  730:  Little  v.  Giles,  supra;  Hedge  Co.  v.  Fuller,  122 
I".  S.  535,  30  L.  ed.  1235,  7  Sup.  Ct.  Rep.  1265. 

83  Deere  Well  &  Co.  v.  Chicago.  M.  &  S.  V.  P.  Ry.  Co.  85  Fed.  876. 

«  Part  of  this  section  is  new  legislation,  the  remainder  is  a  re-enactment 
of  25  Stat.  at  L.  433.  Foster's  Fed.  Prac.  (4th  ed.)  pp.  86.  138,  200,  1197. 
14SS.  1510-14.  1517.  1524.  1529,  1531.  1549,  1556-7.  1565-9,  1581,  1594,  1596. 
(  ..nip.  St.  1901.  p.  510.  4  F.  S.  A.  349,  without  material  change,  which  section 
is  repealed  by  §  297,  Judicial  Code. 


§    290  REMOVAL    OF    CAUSES JURISDICTION    AND    PROCEDURE      173 

any  party  entitled  to  remove  any  suit  mentioned  in  the  last 
preceding  section,  except  suits  removable  on  the  ground  of 
prejudice  or  local  influence,  may  desire  to  remove  such  suit 
from  a  state  court  to  the  district  court  of  the  United  States, 
he  may  make  and  file  a  petition,  duly  verified,  in  such  suit 
in  such  state  court  at  the  time,  or  any  time  before  the  de- 
fendant is  required  by  the  laws  of  the  state  or  the  rule  of  the 
state  court  in  which  such  suit  is  brought  to  answer  or  plead 
to  the  declaration  or  complaint  of  the  plaintiff,  for  the  re- 
moval of  such  suit  into  the  district  court  to  be  held  in  the 
district  where  such  suit  is  pending.  .  .  ." 

The  party  removing  is  also  required  to  file  a  bond  and  transcript 
and  give  notice  as  set  out  in  the  following  sections: 

FORM  1. 
PETITION  FOB  REMOVAL  WHERE  CAUSE  INVOLVES  A  FEDERAL  QUESTION. 

In  the  District  Court  of,  etc., — State  of  Idaho. 
[Title  of  Cause.] 

To  the  Honorable  Judge  of  the  Court  aforesaid: 

Your  petitioners,  defendants  in  the  above-entitled  action,  respectfully  rep- 
resent and  show  to  your  honorable  court: 

That  this  is  a  civil  action  brought  in  this  court  in  pursuance  of  an  adverse 
claim,  filed  in  the  United  States  land  office  at  Cceur  d'  Alene  city,  state  of 
Idaho,  by  the  plaintiff  herein,  to  the  application  of  the  petitioners  for  a 
United  States  patent  to  a  certain  parcel  of  mineral  land,  situated  in  Shoshone 
county,  in  said  state.  That  said  action  is  in  pursuance  of  the  provisions  of 
§  2326  of  the  Revised  Statutes  of  the  United  States,  for  the  determination 
of  controversies  arising  between  claimants  to  the  right  of  possession  of  min- 
eral lands  claimed  for  patent  by  the  parties  thereto. 

Your  petitioners  allege  that  they  are  each  citizens  of  the  United  States 
and  residents  and  citizens  of  the  county  of  Shoshone,  state  of  Idaho,  and  that 
the  Shoshone  Mining  Company  is  a  corporation  doing  business  and  claiming 
to  be  organized  and  existing  under  the  laws  of  the  state  of  Idaho. 

Consent  of  counsel  does  not  give  district  court  jurisdiction.  In  re  Foley, 
76  Fed.  390.  But  facts  may  be  admitted  which  will  give  the  court  jurisdic- 
tion. Pittsburg.  etc.,  R.  Co.  v.  Ramsey,  22  Wall.  322,  22  L.  ed.  823 ;  'Hyde  v. 
Victoria  Land  Co.  125  Fed.  970. 

In  general,  Fayette  Title  &  Trust  Co.  v.  Maryland,  P.  &  W.  V.  Tel.  &  Teleg. 
Co.  180  Fed.  928. 

Petition,  time  for  filing,  Lewis  v.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co.  102 
Fed?  654. 

Grounds  for  remand,  Western  Union  Teleg.  Co.  v.  Louisville  &  N.  R.  Co.  et 
al.  201  Fed.  932. 

Procedure,   Coins,  v.    S.    P.   Co.    108    Fed.  4.32. 

Application,  notice,  Cayce  v.  Southern  R.  Co.  195  Fed.  786. 


174        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  290 

That  the  value  of  the  premises  described  in  the  complaint,  exclusive  of  in- 
terest and  costs,  exceeds  the  sum  of  three  thousand  ($3,000)  dollars. 

That  this  action  is  a  special  action  created  and  authorized  by  the. statutes 
of  the  United  States,  to  facilitate  the  sale  and  disposition  of  the  public  min- 
eral lands  by  the  land  department,  and  involves  the  right  of  possession  con- 
ferred by  said  statutes  on  claimants  of  the  same  who  desire  to  obtain  patents 
for  the  lands  claimed  by  them,  and  is  therefore  within  the  jurisdiction  of 
the  courts  of  the  United  States. 

That  this  action  involves  the  questions  of  what  is  a  lawful  location  of  a 
mineral  claim;  what  discovery  of  mineral  is  required  to  support  such  lo- 
cation, and  what  rights  follow  such  location,  discovery,  and  attempted  appro- 
priation, and  the  proper  construction  of  the  acts  of  Congress  relating  thereto. 

That  your  petitioners  are  claimants  of  the  title  to  the  premises  in  con- 
troversy and  the  plaintiff  is  an  adverse  claimant  thereto  under  the  statute. 

Your  petitioners  herewith  present  a  good  and  sufficient  bond  as  provided 
by  the  statute  in  such  cases,  that  they  will  enter  in  such  district  court  for 
the  Northern  Division  of  the  District  of  Idaho,  within  thirty  days  from  the 
filing  of  this  petition  a  certified  copy  of  the  record  in  this  suit  and  for  the 
payment  of  all  costs  which  may  be  awarded  by  the  said  court,  if  the  said 
district  court  shall  hold  that  this  suit  was  wrongfully  or  improperly  removed 
thereto.  (If  special  bail  was  originally  requisite  in  said  cause  add  here, 
"and  shall  then  and  there  appear  and  enter  special  bail  in  said  suit.") 

Your  petitioners  therefore  pray  that  this  court  proceed  no  further  herein, 
except  to  make  the  order  of  removal  as  required  by  law  and  to  accept  the 
bond  presented  herewith,  and  direct  a  transcript  of  the  record  herein  to  be 
made  for  said  court  as  provided  by  law,  and  as  in  duty  bound  your  petition- 
ers will  ever  pray. 

State   of    ,     J  

County  of   (  

V\Y  and  XY,  being  each  duly  sworn  according  to  law,  severally  depose  and 
say : 

I  am  one  of  the  petitioners  in  the  above-written  petition  and  have  read 
said  petition,  and  the  same  is  true  of  my  own  knowledge,  except  such  matters 
as  are  therein  stated  on  information  and  belief,  and  as  to  such  statements  I 
believe  it  to  be  true. 

Subscribed  and  sworn  to,  etc. 

FORM  2. 

VERIFICATION  BY  ATTORNEY. 
State  or   ,       ) 

88. 

County   of    J 

VP,  being  first  duly  sworn,  on  oath  says  that  he  is  one  of  the  attorneys 
of  the  defendant  in  the  above-entitled  cause  and  of  the  petitioner  named  in 
the  foregoing  petition ;  that  he  has  read  the  same  and  believes  the  same  to 
ho  true,  and  affiant  further  says  that  said  petitioner  is  absent  from  and  is  a 
nonresident  of  the  county  of  ,  State  of  in  which 


§    290  REMOVAL    OF    CAUSES JURISDICTION    AND    PROCEDURE     175 

said  suit  is  brought,  and  that  affiant  makes  this  affidavit  for  the  reason  that 
the   defendant  is   absent   from    and   is   a   nonresident   of   the  said   county   of 

,  in  which  said  suit  is  brought. 

VP. 
Sworn,  etc. 

FORM  3. 

N 

PETITION  FOB  REMOVAL.     INVOLVING  FEDERAL  QUESTION. 

In  the  Superior  Court,  etc. — State  of  California. 
[Title  of  Cause.] 

Now  at  the  time  of  filing  his  first  appearance  in  said  entitled  cause  comes 
the  said  defendant  and  presents  to  this  Honorable  Court  his  petition  for  re- 
moval of  this  suit  to  the  District  Court  of  the  United  States,  in  and  for 
the  northern  district  of  California,  held  at  the  City  of  San  Francisco,  and 
as  grounds  therefor  respectfully  shows: 

First.  That  as  shown  by  plaintiff's  complaint  on  file  herein,  this  suit 
arises  under  the  laws  of  the  United  States  providing  for  the  disposition 
and  sale  of  the  public  gold-bearing  mineral  lands. 

Second.  That  each  of  the  plaintiffs  is  and  for  more  than  five  years  last 
past  has  been  a  citizen  of  the  state  of  California. 

Third.  That  the  defendant  is  and  for  more  than  five  years  last  past  has 
been  a  citizen  of  Minnesota. 

Fourth.  That  the  lands  in  controversy  in  this  suit  are  of  the  value  of 
$3,000. 

Conclusion  as  in  form  1. 

Verification  as  in  form  1  or  2. 

FORM  4. 
PETITION  FOB  REMOVAL  INVOLVING  FEDERAL  QUESTION. 

In  the  Superior  Court  of,  etc. — State  of  California. 
[Title  of  Cause.] 

Your  petitioners  respectfully  show  that  they  are  the  defendants  in  this 
action,  which  is  of  a  civil  nature,  in  equity,  and  that  the  matter  or  amount 
in  dispute  exceeds  the  sum  of  $3,000,  exclusive  of  interest  and  costs. 

That  said  action  is  in  equity,  of  a  civil  nature,  and  arises  under  the  Con- 
stitution and  laws  of  the  United  States. 

That  the  defendants,  at  and  about  the  time  of  the  commencement  of  the 
above-entitled  action,  were  in  the  possession  and  occupancy  of  the  mining 
ground  known  as  the  St.  Lawrence  Mine,  near  Moore's  Flat,  in  Nevada 
county,  state  of  California,  and  were  engaged  in  working  said  property 
by  the  hydraulic  process  under  a  license  or  permit  duly  and  regularly  made 
and  issued  to  the  defendant  Ah  Wing  as  the  owner  of  the  property  by  the 
commissioners  appointed  and  acting  under  and  in  pursuance  of  an  act  of 
the  Congress  of  the  United  States,  approved  March  3,  1893,  entitled,  "An 


17U  MOJS'TGOMKKY's   MANUAL  OF  FEDERAL  PROCEDURE        §    290 

Act  to  Create  the  California  Debris  Commission,  and  to  regulate  Hydraulic- 
Mining  in  the  State  of  California." 

That  said  mining  was  carried  on  by  said  defendants  in  conformity  to 
the  license  or  permit  aforesaid,  and  the  rules,  regulations,  and  requirements 
of  said  commission,  and  the  provisions  of  said  act  of  Congress. 

That  said  action  is  brought  to  restrain  and  enjoin  the  defendants  and 
rach  and  all  of  them  from  working  said  mine  by  the  hydraulic  process; 
that  the  question  of  the  force  and  effect  of  the  said  act  of  Congress  and 
of  the  power  and  authority  of  said  debris  commission  under  said  act  of 
Congress,  and  of  the  legal  effect  of  the  license  or  permit  granted  by  said 
commission  to  the  defendant  Ah  Wing,  and  other  acts  performed  by  said 
commission  relating  to  the  subject-matter  of  this  action,  are  involved  in  said 
action;  that  said  defense  rests  mainly  upon  said  act  of  Congress  and  upon 
the  power  and  authority  of  the  said  commission  thereunder,  as  will  more 
fully  appear  from  the  complaint  on  file,  and  from  the  answer  of  the  de- 
fendants thereto,  filed  herewith,  to  which  reference  is  hereby  made. 

Conclusion  as  in  form  ]. 

Verification   as   in  form   1  or  2. 

FORM  5. 

PETITION  FOB  REMOVAL — CITIZENS  OF  DIFFERENT  STATES. 
(Nonresident  Plaintiff  v.  Nonresident  Defendant.) 

In  the  Superior  Court  of,  etc. — State  of  Washington. 

[Title  of  Cause.] 

To   the   Honorable  Judges   of   the   above-entitled   court: 
Comes  now  your  petitioner,   the  above-named  defendant,  by  his 

attorneys,    and   respectfully   represents   to   this   honorable   court : 

1.  That  on  the day  of ,  .  .  .  .,  the  above-named  plaintiff 

filed  a  complaint  in  the  superior  court  of  King  county,  state  of  Washington, 
praying  for  a  judgment  against  the  defendant  upon   a  promissory  note   for 
the  sum  of  three  thousand    ($3000.00)    dollars,  with  interest  at  10  per  cent 

per  annum  from ,  with  costs,  and  attorneys'  fees  of  5  per  cent  of  the 

amount  due. 

2.  That   on    said   date,   and    immediately   after    filing   said    complaint,    the 
said  plaintiff  caused  to  be  sued  out  a  writ  of  attachment,  and  caused  said 
writ  of  attachment  to  be  delivered  to  the  sheriff,  who  thereupon  levied  upon 
property  of  your  petitioner  in  King  county.  Washington. 

3.  Your   petitioner   further   avers   that  the   time   has   not   elapsed   wherein 
your  petitioner  is  allowed  under  the  practice  and  laws  of  the  state  of  Wash- 
ington and  the  rules  of  said  court  to  appear,  plead,  demur,  or  answer  said 
r-omplaint. 

4.  Your   petitioner   further   avers   that  at  the  time  of  the  commencement 
of  said  suit,   and  ever  since  then,  and   at  the  present  time  the  plaintiff  in 
said  action,  the  Harrisburg  Trust  Company,  was  and  is  a  corporation  organ- 
ized and  existing  under  and  by  virtue  of  the  laws  of  the  commonwealth  of 


§    290    KEMOVAL    OF    CAUSES JURISDICTION    AND    PROCEDURE.    177 

Pennsylvania,  and  was  a  citizen  and  resident  of  the  state  of  Pennsylvania, 
having  its  principal  place  of  business  at  the  city  of  Harrisburg  in  said 
state,  and  the  defendant,  at  the  time  of  the  commencement  of  said  suit  was, 
and  ever  since  has  been,  and  still  is,  a  citizen  of  the  state  of  Wisconsin  and 
a  resident  thereof,  residing  at  the  city  of  Oconomowoc  in  said  state  of  Wis- 
consin. 

.  5.  Your  petitioner  further  avers  that  this  is  a  controversy  between  citizens 
of  different  states  and  more  than  three  thousand  ($3,000)  dollars,  exclusive 
of  interest  and  costs,  is  involved  therein. 

Conclusion  as  in  form   1. 

Verification  as   in   form   1   or  2. 

FORM  6. 

PETITION  FOB  REMOVAL — CITIZENS  OF  DIFFERENT  STATES. 
(Resident  Plaintiff  v.  Nonresident   Defendant.) 

In  the  Superior  Court  of,  etc. — State  of  California. 
[Title  of  Cause.] 
To  the  Honorable  Superior  Court  of  Humboldt  County,  State  of  California. 

The  petition  of  and  defendants  in  the  above- 
entitled  action,  respectfully  show  to  this  honorable  court. 

That  your  petitioners  are  defendants  in  the  above-entitled  action. 

That  said  action  lias  been  commenced  against  them  in  said  court  by  said 
plaintiff,  and  that  said  action  is  of  a  civil  nature. 

That  said  plaintiff,  in  his  complaint  herein,  claims  in  substance  that  on 

the    ....    day  of    ,    . .  . . ,  your  petitioner  entered  into  a  contract  in 

writing  with  plaintiff  for  the  purchase  and  acquisition  of  certain  timber  lands 
situate  in  said  county  and  state,  and  that  in  such  purchase  and  acquisition 
said  plaintiff  rendered  certain  services  for  defendants  upon  an  agreed  price, 
amounting  to  the  sum  of  $5,479.46,  for  which  he  demands  judgment  against 
said  defendants. 

That  your  petitioners  dispute  said  claim  and  deny  all  liability  under  the 
contract  set  out  in  the  complaint  herein. 

That  the  matter  in  dispute  in  this  action  exceeds  the  sum  of  three  thousand 
dollars,  exclusive  of  interest  and  costs. 

That  the  controversy  in  this  action  and  every  issue  of  fact  and  law  therein 
is  wholly  between  citizens  of  different  states,  and  which  can  be  fully  de- 
termined as  between  them — that  is  to  say,  the  plaintiff,  .  .  ,  is  now,  and 
was  at  the  time  of  the  filing  of  the  complaint  in  this  action,  a  citizen  and 

resident  of  the  state  of  California,  and  the  defendants, and , 

were  then  and  still  are  citizens  and  residents  of  the  state  of  New  York. 

That  the  time  for  your  petitioners,  as  defendants  in  this  action,  to  answer 
or  plead  to  the  complaint  in  said  action  has  not  yet  expired  and  will  not 

so  expire  until  the   day  of ,   . .  . . ,  and  your  petitioners  have 

not  yet  filed  or  in  any  way  appeared  therein. 

Conclusion  as  in  form  1. 

Verification  as  in  form  1  or  2. 
Montg. — 12. 


178       MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE       §  2 'JO 

FORM  7. 
PETITION  FOB  REMOVAL. 

(Resident  Plaintiff  v.  Nonresident  Defendant  and  Resident  Defendant  who 
has  Disclaimed  All  Interest  in  the  Action.) 

In  the  Superior  Court  of,  etc. — State  of  California. 
[Title  of  Cause.] 

The  petition  of ,  one  of  the  above-named  defendants,  shows  to 

the  court  as  follows: 

That  the  above  suit  was  begun  against  your  petitioner,   and 

,  in  the  superior  court  of  the  city  and  county  of  San  Francisco, 

state  of  California,  by  the  filing  of  a  complaint  and  the  service  of  a  sum- 
mons and  copy  of  the  complaint  therein,  on  the  .  .  day  of . .,  

That  the  defendant, ,  filed  his  answer  in  said  cause  on  the 

day  of , That  your  petitioner  has  not  yet  filed  his  answer; 

but  that,  as  to  your  petitioner,  said  cause  is  now  pending  on  his  motion 
to  strike  out  portions  of  the  complaint  herein;  that  said  cause  has  not  been 
tried,  and  that  this  is  the  first  term  of  said  superior  court  at  which  the 
same  could  by  any  probability  be  tried. 

That  at  the  time  said  suit  was  begun,  and  at  the  present  time,  the  plain- 
tiff was   and   is   a  citizen   and   resident  of  the  state  of   California,   and   the 

defendant,    ,  was  and  is  a  citizen  and  resident  of  the  state  of 

Xevada;    and   that   the   said   defendant,    ,   was   and   is   a   citizen 

and  resident  of  the  state  of  California. 

That  the  matters  in  dispute  in  said  suit,  and  for  which  said  suit  is  brought, 
exceed   the    sum   of   three   thousand    dollars,    exclusive   of    costs.      That    the 

defendant.   ,  has  no  interest  in  said  action  or  the  matters  in 

dispute  therein,  or  in  any  of  the  property  therein  mentioned,  and  has  filed 
his  answer  disclaiming  any  interest  of  any  name  or  nature  in  the  same,  or 
in  the  property  described  therein,  and  the  same  is  wholly  and  solely  the 
property  of  the  defendant,  

Conclusion  as  in  form  1. 

Verification  as  in  form  1  or  2. 

FORM  8. 

PETITION  FOB  REMOVAL. 
(Citizens  v.  Aliens.) 

In  the  Superior  Court  of,  etc. — State  of  California. 

[Title  of  Cause.] 

The  petition  of  one  of  the  above-named  defendants,  shows  to 

the  court  as  follows: 

That   the   above   suit   was   begun   against   your   petitioners, 
and   ,  in  the  superior  court  of  the  county  of  Marin,  state  of 


§    290  REMOVAL    OF    CAUSES JURISDICTION    AND    PROCEDURE     179 

California,  by  the  filing  of  a  complaint,  and  the  service  of  a  summons  and 
a  copy  of  the  complaint  herein  on  the  defendants. 

That  your  petitioners  have  not  yet  filed  their  answer,  but  that,  as  to  your 
petitioners,  said  cause  is  now  pending,  that  said  cause  has  not  been  tried, 
and  that  this  is  the  first  term  of  said  superior  court  at  which  the  same 
could  by  any  probability  be  tried. 

That  at  the  time  said  suit  was  begun,  and  at  the  present  time,  the  plain- 
tiffs are  citizens  and  residents  of  the  state  of  California,  and  the  defend- 
ants are  aliens  and  subjects  of  the  United  Kingdom  of  Great  Britain  and 

Ireland;  the  said  defendant,  ,  being  a  resident  of  the  county 

of  Marin,  and  the  said  residents  of  the  county  of  Alameda, 

state  of  California. 

That  the  matters  in  dispute  in  said  suit,  and  for  which  said  suit  is  brought, 
exceed  the  sum  of  three  thousand  dollars,  exclusive  of  interest  and  costs. 

Conclusion  as  in  form  1. 

Verification  as  in  form  1  or  2. 

FORM  9. 

PETITION  FOE  REMOVAL  FROM  STATE  COURT  TO  DISTRICT  COUBT. 
(Resident  Plaintiff  v.  Alien  Defendant.) 

In  the  Superior  Court  of,  etc. — State  of  Washington. 
[Title  of  Cause.] 

To  the  Honorable,  the  Superior  Court  of  the  State  of  Washington,  in  and  for 
the  county  of  Jefferson,  and  to  the  Honorable   Judge  thereof: 

The  petition  of  ,  the  defendant  in  the  above-entitled  act,  re- 
spectfully shows: 

I. 

That  said  action  is  a  suit  of  a  civil  nature  at  common  law,  of  which  the 
district  court  of  the  United  States  has  original  jurisdiction,  and  has  been 
brought  and  is  now  pending  in  this  honorable  court,  and  has  not  yet  been 
tried,  nor  has  the  time  at  or  before  which  the  defendant,  this  petitioner, 
is  required,  by  laws  of  the  state  of  Washington,  or  any  rules  or  rule  of  this 
honorable  court,  to  answer  or  plead  to  the  complaint  of  plaintiff  elapsed, 
and  the  matter  in  dispute  in  said  suit  exceeds,  exclusive  of  interest  and 
costs,  the  sum  and  value  of  three  thousand  dollars,  and  said  suit  is  a  con- 
troversy between  the  plaintiff,  who,  at  the  time  of  the  commencement  of  said 
suit,  was  and  now  is  a  citizen  of  the  state  of  Washington,  and  this  de- 
fendant, who  is  not  a  citizen  of  the  state  of  Washington,  but  was,  at  the 
time  of  the  commencement  of  said  suit,  and  now  is,  a  foreign  citizen  and 
subject;  that  is  to  say,  a  citizen  of  the  British  Empire  and  a  subject  of  her 
Britannic  Majesty,  Queen  Victoria,  and  that  there  are  no  other  parties  to 
said  suit. 


180        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  290 

II. 

That  by  reason  of  the  premises  this  petitioner,  said  defendant,  desires  and 
is  entitled  to  have  said  suit  removed  from  said  superior  court  of  the  state 
of  Washington  into  the  district  court  of  the  United  States  for  the  proper 
district  at  this  time. 

III. 

That  the  district  court  of  the  United  States  for  the  ninth  circuit,  and  in 
and  for  the  northern  division  of  the  district  of  Washington,  holding  terms 
at  the  city  of  Seattle,  is  the  district  court  of  the  United  States  for  the  proper 
district,  being  the  district  court  of  the  United  States  held  in  the  district 
\viiere  said  suit  is  pending. 

Conclusion  as  in  form   1. 

Verification  as  in  form  1   or  2. 

FORM  10. 
PETITION  FOB  REMOVAL — SEPARABLE  CONTROVERSY. 

In  the  Superior  Court  of,  etc. — State  of  California. 

[Title  of  Cause.] 
To  the  Honorable,  the  Superior  Court  of  the  city  and  county  of  San  Francisco, 

State  of  California: 

The  petition  of   7  one  of  the  above-named  defendants,  shows  as 

follows : 

Your  petitioner  shows  to  this  honorable  court  that  he  is  one  of  the  de- 
fendants in  this  suit,  which  is  of  a  civil  nature,  and  that  the  matter  or 
amount  in  dispute  in  this  cause  exceeds  the  sum  or  value  of  three  thousand 
dollars,  exclusive  of  interest  and  costs. 

That  the  controversy  herein  is  between  citizens  of  a  state  and  of  a  foreign 

state;   that  the  plaintiff,   ,  was  at  the  time  of  the  commencement 

of  this  suit,  and  still  is,  a  citizen  of  the  state  of  California,  residing  in  the 

county  of  Sonoma,  in  said  state,  and  that  your  petitioner,   ,  was, 

at  the  time  of  the  commencement  of  this  suit,  and  for  seventeen  years  last 
past  has  been,  a  resident  of  the  city  of  Denver,  in  the  state  of  Colorado,  and 
that  your  petitioner  desires  to  remove  this  suit  before  the  trial  thereof  into 

the  next  district  court  of  the  United  States  to  be  held  in  the northern 

district  of  California. 

Your  petitioner  further  shows  that  the  causes  of  action  that  the  plaintiff 

herein  lias  against  the  two  defendants  for  damages  for  the  death  of 

are  separable  controversies. 

That  on  the  ....  day  of , ,  your  petitioner  was  engaged  as  an 

independent  contractor  to  do  certain  work  in  the  construction  of  a  building 
on  the  lot  of  land  situate  at  the  southwest  corner  of  Market  and  Third 
streets;  that  in  the  prosecution  of  said  work  it  became  and  was  necessary 
to  place  a  certain  piece,  of  timber  in  an  upright  position,  so  that  one  end 
of  said  timber  was  against  the  under  part  of  said  cornice,  and  the  other 
end  was  on  the  roof  of  the  building  on  the  lot  next  adjoining  on  the  west. 


§    290  REMOVAL,    OF    CAUSES JURISDICTION    AND    PROCEDURE      181 

That  the  defendant ,  is  the  owner  of  said  last-mentiom-d  lot. 

That  it  is  claimed  by  the  plaintiff  that  the  aforesaid  piece  of  timber  fell 

from  its  place  and  struck  the  said ,  who  was  on  the  street  beneath, 

and  so  injured  him  that  he  subsequently  died. 

That  the  cause  of  action  that  the  plaintiff,  has,  if  she  has  any, 

against  your  petitioner,  is  for  his  negligence,  through  his  agents  and  serv- 
^ants,  in  improperly  placing  the  said  piece  of  timber.  That  the  cause  of  action 

that  plaintiff,  ,  has,  if  she  has  any,  against  the  defendant, , 

is  for  maintaining  a  nuisance  upon  his  said  premises.  That  therefore  the 
said  two  causes  of  action  are  separable. 

Conclusion  as  in  form  1. 

Verification  as  in  form  1  or  2. 


FORM  11. 

PETITION  FOR  REMOVAL — SEPARABLE  CONTROVERSIES  AFTER  DISMISSAL  OF  SUIT 
AGAINST  OTHER  DEFENDANTS. 

[Title  of  Court  and  Cause.] 

To  the  Honorable,  the   Court  of  State  of   

Your  petitioner  respectfully  shows  that  it  is  one  of  the  defendants  in  the 
above-entitled  suit,  and  that  the  matter  and  amount  in  dispute  in  said  suit 
exceeds,  exclusive  of  interest  and  costs,  the  sum  or  value  of  three  thousand 
dollars. 

That  there  is  in  said  suit  a  controversy  which  is  wholly  between  citizens 
of  different  states,  and  which  can  be  fully  determined  as  between  them,  to 

wit,   between  your   petitioner,   the    Ry.   Co.,   defendant   in   said 

suit,  who  avers  that  it  was  at  the  commencement  of  this  suit,  and  still  is, 
a  corporation  organized  under  the  laws  of  the  states  of  Virginia  and  West 
Virginia,  and  of  no  other  state,  and  that  it  was  then  and  still  is  a  citizen 
and  resident  of  the  states  of  Virginia  and  West  Virginia,  and  of  no  other 
state,  and  that  it  was  not  then,  and  is  not  now,  a  resident  or  citizen  of 
the  state  of  Kentucky — and  the  plaintiff,  ,  who  was,  at  the  com- 
mencement of  this  suit,  and  still  is,  a  resident  and  citizen  of  the  state  of 

Kentucky.    Your  petitioner  further  says  that  the  said  defendants,  , 

and    ,    are    all    and    every    of    them,    citizens    and    residents    of 

the  state  of  Kentucky,  and  that  they  are  fraudulently  and  improperly  joined 
as  parties  defendant  for  the  sole  purpose  of  defeating  the  right  of  petitioner 
to  remove  to  the  United  States  circuit  court. 

That   because   of   said   joinder   of   said    and    ,   being 

citizens  of  the  same  state  as  said  plaintiff,  said  cause  was  remanded  to  the 
state  court. 

Your  petitioner  says  that  the  said  suit  as  to  said  and  

was,  on  the day  of   , dismissed,  that  the  said  cause  is 

now,  for  the  first  time,  pending  as  to  the  said   alone. 

Conclusion  as  in  form  1. 

Verification  as  in  form   1  or  2. 


182        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  291 

§  291.  Bond  on  Removal  in  Classes  One,  Two,  and  Three. 
Pt.  §  29,  Judicial  Code,'  36  Stat.  at  L.  1095,  Comp.  St. 
1911,  p.  142,  1912  Supp.  F.  S.  A.  v.  1,  p.  146.  ''Whenever 
any  parties  entitled  to  remove  any  suit  mentioned  in  the  pre- 
ceding section,  except  suits  removable  on  the  ground  of  preju- 
dice or  local  influence,  .  .  .  (he)  shall  make  and  file 
therewith  a  bond,  with  good  and  sufficient  surety,  for  his 
or  their  entering  in  such  district  court,  within  thirty  days 
from  the  date  of  filing  said  petition,  a  certified  copy  of  the 
record  in  such  suit,  and  for  paying  all  costs  that  may  be 
awarded  by  the  said  district  court  if  said  district  court  shall 
hold  that  such  suit  was  wrongfully  or  improperly  removed 
thereto,  and  also  for  their  appearing  and  entering  special 
bail  in  such  suit  if  special  bail  was  originally  requisite  there- 
in." 

FORM  12. 
BOND  ON  REMOVAL. 

[Title  of  State  Court  and  Cause.] 

Know  all  men  by  these  presents,  that  we,  XY  and  Z,  as  principals,  and 

M   and  N,   as   sureties,   residents,   and    of  the   county  of    , 

State  of    ,   are  held  and   firmly   bound   unto  AB,   plaintiff   in   the 

above-entitled  cause,  his  successors  and  assigns,  in  the  sum  of  five  hundred 
($500)  dollars,  lawful  money  of  the  United  States  of  America,  for  the  pay- 
ment of  which  well  and  truly  to  be  made,  we  and  each  of  us  bind  our- 
selves, and  each  of  us,  our  heirs,  executors,  and  administrators,  jointly  and 
severally,  by  these  presents. 

The  conditions  of  this  obligation  are  such  that: 

Whereas,  the  said  XY  and  Z  have  applied  by  petition  to  the    (superior) 

court  of  the  state  of    ,  in  and  for  the  county  of    ,  for 

the  removal  of  a  certain  caus«  therein  pending  wherein  AB  is  plaintiff  and 
the  said  XY  and  Z  are  defendants,  to  the  district  court  of  the  United  States 

for  the  district  of    ,    division,  for  further  proceedings 

on  grounds  in  the  said .  petition  set  forth,  and  that  all  further  proceedings 
in  said  action  in  said  court  be  stayed. 

Now,  therefore,  if  your  petitioners,  the  said  XY  and  Z  shall  enter  in  said 

district  court  of  the  United  States  for  the  district  of   ,  aforesaid, 

within  thirty  days  from  the  date  of  filing  said  petition,  a  certified  copy  of 
the  record  in  such  suit,  and  shall  pay  or  cause  to  be  paid  all  costs  that  may 
be  awarded  therein  by  said  district  court  of  the  United  States  if  said  court 
shall  hold  that  said  suit  was  wrongfully  or  improperly  removed  thereto 
[Note. — If  special  bail  was  originally  requisite  in  said  cause  add  here: 

*  For  Annotation  of  this  §  29,  Judicial  Code,  see  footnote  «,  ante,  our  §  290. 


§    293    REMOVAL    OF    CAUSES JURISDICTION    AND    PROCEDURE     183 

"And  shall  then  and  there  appear  and  enter  special  bail  in  said  suit"],  then 
this  obligation  shall  be  void;  otherwise  shall  remain  in  full  force  and  effect. 
Signed,  subscribed  and  sworn,  etc. 


Sureties'  Justification. 


"State  of 
County   of 


M  and  N,  the  sureties  named  in  the  foregoing  bond,  being  first  duly  sworn, 
each  for  himself,  deposes  and  says  as  follows:  I  am  the  same  person  whose 
name  is  subscribed  to  the  foregoing  bond,  and  I  state  I  am  a  householder 
and  resident  of  the  county  and  State  aforesaid,  and  that  I  am  worth  the 
sum  of  five  hundred  ($500)  dollars  named  therein  as  the  penalty  thereof, 
over  and  above  all  my  just  debts  and  liabilities,  exclusive  of  property  which 
is  exempt  from  execution. 

M. 
N. 

Subscribed  and  sworn,  etc. 

§  292.  Duty  of  State  Court  in  Such  Cases. 

Pi.  §  29,  Judicial  Code*  36  Stat.  at  L.  1095,  Comp.  St. 
1911,  p.  142,  1912  Supp.  F.  8.  A.  v.  1,  p.  146.  ".  .  .  It 
shall  then  be  the  duty  of  the  state  court  to  accept  said  pe- 
tition and  bond  and  proceed  no  further  in  such  suit." 

§  293.  Notice  to  Adverse  Party  in  Such  Cases. 

PL  §  29,  Judicial  Code*  36  Stat.  at  L.  1095,  Comp.  St. 
1911,  p.  142,  1912  Supp.  F.  S.  A.  v.  1,  p.  146.  ".  .  . 
Written  notice  of  said  petition  and  bond  for  removal  shall 
be  given  the  adverse  party  or  parties  prior  to  filing  the  same." 

FORM    13. 
NOTICE  OF  PETITION  AND  BOND  FOB  ORDER  OF  REMOVAL. 

[Title  of  State  Court  and  Cause.] 

To  Messrs.  P  and  Q,  Attorneys  for  Plaintiff: 

Please   take   notice   that   the   defendants   will   on    ........  ,   the    ....    day 

of   ........  ,   .  .  .  .  ,  at  10  o'clock,  A.  M.,  or  as  soon  thereafter  as  counsel  can 

be  heard,  move  the  court  for  an  order  removing  said  ca\ise  to  the  district 
court  of  the  United  States  for  the   ..........   district  of    ..........    in  ac- 

s  For  Annotation  of  this  §  29,  Jiidicial  Code,  see  footnote  *,  ante,  our  §  290. 
h  For  Annotation  of  this  §  29,  Judicial  Code,  see  footnote  «,  ante,  our  §  290. 


184        MONTOO.MEKY'S  MANUAL  OF  FEDERAL  PROCEDURE       §  293 

ronlance  with  the  petition  and  bond  of  defendants,  copies  of  which  are  hereto 
attached. 
Dated  the   ....   day  of   ,   


Attorney  for  defendants. 

FORM  14. 
OBDEB  OF  REMOVAL. 

[Title  of  State  Court  and  Cause.] 

This  cause  coming  on  for  hearing  upon  petition  and  bond  of  the  defend- 
ant herein  for  an  order  transferring  this  cause  to  the  United  States  district 

court  for  the  district  of  ,  division,  and  it 

appearing  to  the  court  that  the  defendant  has  filed  his  petition  for  such 
removal  in  due  form  of  law,  and  that  the  defendant  has  filed  his  bond  duly 
conditioned,  with  good  and  sufficient  sureties,  as  provided  by  law,  and  that 
defendant  has  given  plaintiff  due  and  legal  notice  thereof,  and  it  appearing 
1o  the  court  that  this  is  a  proper  cause  for  removal  to  said  district  court. 

Xow,  therefore,  said  petition  and  bond  are  hereby  accepted  and  it  is  hereby 
ordered  and  adjudged  that  this  cause  be  and  it  hereby  is  removed  to  the 

United  States  district  court  for  the  district  of  ,  

division,  and  the  clerk  is  hereby  directed  to  make  up  the  record  in  said  cause 
for  transmission  to  said  court  forthwith. 

Done  in  open  court,  this  ....  day  of  ,  


Judge. 
FORM  15. 

CLEBK'S  CEBTIFICATE  WITH  RECORD. 

[Title  of  State  Court  and  Cause.] 

State  of    ,       } 

County   of    J 

I,  F,  county  clerk  of  said  county  of  ,  and  ex-officio  clerk  of  the 

superior  court  in  and  for  said  county,  hereby  certify  the  above  and  fore- 
going to  be  a  full,  true,  and  correct  copy  of  the  record,  and  the  whole  there- 
of, in  the  above-entitled  suit  heretofore  pending  in  said  superior  court,  being 

the  suit  numbered  No ,  wherein  AB  is  plaintiff  and  XY  are  defendants, 

said  record  consisting  of  the  complaint,   filed  by  said   plaintiff  in   said   suit 

on   the    ....    day  of    ,    ..;   the  summons   and   return   thereon,   filed   in 

said  suit  on  the   ....   day  of   ,   ....    (here  add  any  other  proceedings 

that  may  have  been  filed)  the  petition  for  removal  of  said  suit  to  the  United 
States  district  court,  filed  by  said  defendant  in  said  suit  on  the  ....  day  of 
.  .  .  . ,  the  bond  for  removal,  the  notice  of  petition  and  bond,  and  the  order 
of  removal  of  said  suit  to  said  United  States  district  court,  entered  of  record 


§    295    REMOVAL    OF    CAUSES JURISDICTION    AND    PROCEDURE    185 

in  said  suit  on  the  ....  day  of ,  . .  . .,  all  as  appears  on  the  files  and  of 

record  in  my  office. 
In   testimony,   etc. 


Clerk. 
[Seal] 

FORM  16. 

NOTICE  OF  REMOVAL. 
In  the  District  Court  of,  etc.,  of  the  United  States. 

(Title  of  Cause.] 

You  and  each  of  you  will  please  take  notice  that  on  the  ....  day  of , 

.  .  .  . ,  the  above-entitled  cause  was  duly  transferred  from  the court  of 

the   county  of    ,  state  of   ,  to  the  district  court 

of  the  United   States,   in  and  for  the    district  of    ,  and 

that  the  record  in  said  cause  has  this  day  been  duly  filed  in  the  said  United 
States  district  court. 

Dated , 

P.  &  Q, 
Attorneys  for  Defendant. 

To  the  above-named  plaintiff  and  to  Messrs and   ,  At- 
torneys for  Plaintiff. 

§  294.  Procedure  after  Removal  in  Classes  One,  Two,  and 
Three. 

PL  §  29,  Judicial  Code*  36  Stat.  at  L.  1095,  Comp.  St. 
1911,  p.  142,  1912  Supp.  F.  8.  A.v.l,  p.  146.  ".  .  .  The 
said  copy  being  entered  within  said  thirty  days  as  aforesaid 
in  said  district  court  of  the  United  States,  the  parties  so  re- 
moving the  said  cause  shall,  within  thirty  days  thereafter, 
plead,  answer,  or  demur  to  the  declaration  or  complaint  in 
said  cause,  and  the  cause  shall  then  proceed  in  the  same 
manner  as  if  it  had  been  originally  commenced  in  the  said 
district  court." 

§  295.  Class  Four;  Removal  on  Ground  of  Prejudice. 

Pt.  §  28,  Judicial  Code}  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  141, 1912  Supp.  F.  8.  A.  v.  1,  p.  145.  ".  .  .  And 
where  a  suit  is  now  pending,  or  may  hereafter  be  brought, 
in  any  state  court,  in  which  there  is  a  controversy  between  a 
citizen  of  the  state  in  which  the  suit  is  brought  and  a  citizen 

i  For  Annotation  of  this  §  29,  Judicial  Code,  see  footnote  «,  ante,  our  §  200. 
J  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  c,  ante,  our  §  221. 


186        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  295 

of  another  state,  any  defendant,  being  such  citizen  of  another 
state,  may  remove  such  suit  into  the  district  court  of  the 
United  States  for  the  proper  district,  at  any  time  before  the 
trial  thereof,  when  it  shall  be  made  to  appear  to  said  district 
court  that  from  prejudice  or  local  influence  he  will  not  be 
able  to  obtain  justice  in  such  state  court,  or  in  any  other 
state  court  to  which  the  said  defendant  may,  under  the  laws 
of  the  state,  have  the  right,  on  account  of  such  prejudice  or 
local  influence,  to  remove  said  cause.  .  .  ." 

The  petition  or  affidavit  in  this  class  of  cases  is  addressed  to 
the  Federal  district  court,  instead  of  the  state  court,  as  in  classes 
one,  two,  and  three  discussed  above.  No  notice  of  the  filing  of 
the  petition  seems  to  be  required,  nor  need  a  bond  be  given  al- 
though both  notice  and  bond  are  the  usual  practice.  The  district 
court  enters  an  order  of  removal,  which  order  should  be  filed  in 
the  state  court  (form  14,  above,  may  be  used  by  entitling  in  the 
Federal  court),  and  a  transcript  of  the  record  obtained  from  the 
state  court  (form  19  gives  the  writ  to  obtain  same)  should  be  filed 
in  the  Federal  court.34 

Removal  in  these  cases,  instead  of  being  required  before  the 
defendant  is  obligated  under  state  practice  to  plead,  may  be  "at 
any  time  before  trial  thereof,"  to  wit,  "before  or  at  the  term  at 
which  the  cause  could  first  be  tried  and  before  trial  thereof."  8S 

FORM  17. 

PETITION  FOB  REMOVAL  ON  GROUND  OF  PBEJUDICE  OB  LOCAL  INFLUENCE. 
In  the  District  Court  of  the  United  States,  etc. 

[Title  of  Cause.] 

Petition  for  removal  from  the  Superior  Court  of  the  State  of , 

in  and  for  the  county  of   

To  the  Honorable,  the  Judge  of  the  District  Court  of  the  United  States  for 
the   District  of   : 

Your  petitioner,  the  above-named  Z,  respectfully  shows  to  this  honorable 

3«  Pennsylvania  Co.  v.  Bender,  148  U.  S.  255,  37  L.  ed.  411,  13  Sup  Ct  Ren 
501. 

35  McDonnell  v.  Jordan,  178  U.  S.  229,  44  L.  ed.  1048,  20  Sup  Ct  Ren 
880. 


§    295  REMOVAL    OF    CAUSES JURISDICTION    AND    PROCEDURE     187 

court   that   A,   as   plaintiff,   brought  suit   of   a  civil   nature   in   the   superior 

court  of  the  state  of ,  in  and  for  the  county  of ,  against 

your  petitioner  Z,  and  that  the  matter  or  amount  in  dispute  in  said  cause 
exceeds  the  sum  or  value  of  three  thousand  dollars,  exclusive  of  interest  and 
costs. 

That  the  said  controversy  is  between  citizens  of  different  states;   that  the 
plaintiff  A  was,  at  the  time  of  the  commencement  of  this  suit  and  still  is  a 

citizen  of  the  state  of ,  the  state  wherein  such  suit  is  pending,  and 

is  residing  at   in  said  state;   and  that  your  petitioner  Z  was,  at 

the  time  of  the  commencement  of  this  suit,  and  still  is,  a  citizen  of  the  state 

of   ,  and  of  no  other  state,  residing  in  the  city  of  in 

said  state,  and  that  your  petitioner  desires  to  remove  this  suit  which  is  now 
pending  and  undetermined  in  said  state  court,  before  the  trial  thereof,  into 
the  district  court  of  the  United  States  to  be  held  in  the  ,  district  of 


Your  petitioner  further  shows  unto  this  honorable  court  that  from  preju- 
dice and  local  influence  in  favor  of.  the  plaintiff  and  adverse  to  this  de- 
fendant he  will  not  be  able  to  obtain  justice  in  said  court  or  in  any  other 
state  court  to  which  said  defendant  may,  under  the  laws  of  the  state,  have 
a  right  to  remove  said  cause,  on  account  of  such  prejudice  or  local  influence. 

Wherefore  your  petitioner  prays  that  an  order  be  entered  for  the  removal 

of  said  case  from  the  court  of  said  state  to  this  court,  and  that 

a  writ  of  certiorari  issue  for  the  return  to  this  court  of  a  certified  copy 
of  the  record  in  said  state  court. 


Petitioner. 
Verification  as  in  form  1  or  2. 


FORM  18. 
AFFIDAVIT  FOB  REMOVAL  OF  CAUSE  FOB  PREJUDICE,  ETC. 

[Title  of  Federal  Court  and  Cause.] 
United   States   of   America,  ) 

S3 

District  of    J 

I,  Z,  being  duly  sworn,  do  say  that  I  am  the  defendant  [or  one  of  the 
defendants]  in  the  above-entitled  cause  which  is  now  pending  for  trial  in 

the  superior  court  of  the  state  of  in  and  for  the  county  of 

,  and  that  from  prejudice  and  local  influence  I  shall  not  be  able 

to  obtain  justice  in  said  state  court  or  in  any  other  state  court  to  which 
I  may,  under  the  laws  of  said  state,  have  the  right,  on  account  of  such 
prejudice  or  local  influences,  to  remove  said  cause. 

Subscribed  and  sworn  to,  etc. 


188        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  :2:M> 

FORM  19. 

WRIT   OF   CERTIORABI    FOB    REMOVAL   ON    GROUND   OF   PREJUDICE    OR    LOCAL 

INFLUENCE. 

The  President  of  the  United  States  of  America  to  the  Superior  Court  of  the 
State  of   ,  in  and  for  the  County  of   ,  Greeting : 

It  being  represented  to  us  that  there  is  now  pending  before  you  a  certain 

cause  No ,  wherein  A  is  plaintiff  and  Z  is  defendant,  which  cause  was 

commenced  in  the  superior  court  of  the  state  of  ,  in  and  for  the 

county  of  by  A  against  the  said  Z,  for  the  purpose  of  (state 

object  of  suit),  and  that  on  the  ....  day  of  ,  a  summons  was  issued 

out  of  said  court  and  that  no  trial  ha?  yet  been  had;  and,  whereas,  said 

defendant  has  caused  to  be  filed,  in  our  district  court  for  the  

district  of  ,  his  petition  for  the  removal  of  the  said  cause  from 

the  said  superior  court  to  the  District  Court  of  the  United  States  for  the 

district  of ,  and  a  bond  with  good  and  sufficient  surety, 

according  to  the  statutes  of  the  United  States  in  such  case  made  and  pro- 
vided; and  has  made  it  appear  to  us  that,  from  prejudice  or  local  influence 
lie  will  not  be  able  to  obtain  justice  in  such  state  court  or  any  other  state 
court  to  which  the  defendant  may,  under  the  laws  of  the  state,  have  the 
right  to  remove  the  said  cause,  we  are  willing  to  remove  the  said  cause, 
and  that  the  records  and  proceedings  therein  should  be  certified  by  said 
superior  court  and  removed  into  our  district  court  of  the  United  States  in 

and  for  the  district  of  ,  and  do  hereby  command  you 

to  certify  and  send  the  records  and  proceedings  aforesaid,  with  all  things 
concerning  the  same,  to  the  said  district  court  of  the  United  States,  to- 
gether with  this  writ,  so  that  you  may  have  the  same  at  the  United  States 

courthouse  in  the  city  of  ,  in  the  said  district  of  ,  on 

the  ....  day  of in  the  said  district  court  to  be  then  and  there  held, 

that  the  said  district  court  may  cause  to  be  done  thereupon  what  of  right, 
according  to  the  laws  of  the  United  States,  should  be  done. 

Witness,  the  Honorable  .  I'/1.  '.': . '.'..,  Judge  of  said  District  Court,  and  the 
seal  of  the  said  District  Court  hereto  affixed,  the  ....  day  of , 


Clerk  of  said  District  Court. 


§  296.  Remanding  Separable  Controversy  in  Class  Four. 
Pt.  §  28,  Judicial  Code*  36  Stat.  at  L.  1094,  Comp  St. 
1911,  p.  141,  1912  Supp.  F.  8.  A.  v.  1,  p.  145.  ". 
Provided,  That  if  it  further  appear  that  said  suit  can  be  fully 
and  justly  determined  as  to  the  other  defendants  in  the  state 
court,  without  being  affected  by  such  prejudice  or  local  in- 
fluence, and  that  no  party  to  the  suit  will  be  prejudiced  by  a 

k  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  «•,  ante,  our  §  221. 


§    299  REMOVAL    OF    CAUSES JURISDICTION    AND    PROCEDURE     189 

separation  of  the  parties,  said  district  court  may  direct  the 
suit  to  be  remanded,  so  far  as  relates  to  such  other  defend- 
ants, to  the  state  court,  to  be  proceeded  with  therein.  .  .  ." 

§  297.  Remanding  upon  Failure  to  Show  Prejudice — Class 
Four. 

Ft.  §  28,  Judicial  Code,1  86  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  141, 1912  Supp.  F.  8.  A.  v.  1,  p.  145.  ".  .  .  At 
any  time  before  the  trial  of  any  suit  which  is  now  pending  in 
any  district  court,  or  may  hereafter  be  entered  therein,  and 
which  has  been  removed  to  said  court  from  a  state  court  on 
the  affidavit  of  any  party  plaintiff  that  he  had  reason  to 
believe  and  did  believe  that,  from  prejudice  or  local  influence, 
he  was  unable  to  obtain  justice  in  said  state  court,  the  dis- 
trict court  shall,  on  application  of  the  other  party,  examine 
into  the  truth  of  said  affidavit  and  the  grounds  thereof,  and, 
unless  it  shall  appear  to  the  satisfaction  of  said  court  that 
said  party  will  not  be  able  to  obtain  justice  in  said  state 
court,  it  shall  cause  the  same  to  be  remanded  thereto.  .  .  ." 

§  298.  Remanding  in  Classes  One,  Two,  Three,  and  Four. 
PL  §  28,  Judicial  Code,™  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  141,  1912  Supp.  F.  S.  A.  v.  1,  p.  145.  ".  .  . 
Whenever  any  cause  shall  be  removed  from  any  state  court 
into  any  district  court  of  the  United  States,  and  the  district 
court  shall  decide  that  the  cause  was  improperly  removed, 
and  order  the  same  to  be  remanded  to  the  state  court  from 
whence  it  came,  such  remand  shall  be  immediately  carried 
into  execution,  and  no  appeal  or  writ  of  error  from  the  de- 
cision of  the  district  court  so  remanding  such  cause  shall  be 
allowed.  .  .  ." 

(See  §  37,  Judicial  Code,  in  §  310,  infra.) 

§  299.  Common  Carrier  Employer's  Liability  Cases  Not 
Removable,  Nor  for  Property  Damages,  unless  $3,000  In- 
volved. 

Pi.  §  28,  Judicial  Code?  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  141,  1912  Supp.  F.  S.  A.  v.  1,  p.  145.  ".  .  . 
Provided,  That  no  case  arising  under  an  act  entitled,  "An 

1  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  «,  ante,  our  §  221. 
n»  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  «,  ante,  our  §  221. 
n  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  c,  ante,  our  §  221. 


190        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  300 

Act  Relating  to  the  Liability  of  Common  Carriers  by  Rail- 
road to  Their  Employees  in  Certain  Cases,"  approved  April 
twenty-second,  nineteen  hundred  and  eight,  or  any  amend- 
ment thereto,  and  brought  in  any  state  court  of  competent 
jurisdiction,  shall  be  removed  to  any  court  of  the  United 
States." 

Act  January  20,  191k,  ch.  48,  amending  §  28,  Judicial 
Code,  by  inserting  at  the  conclusion  thereof,  "And  provided 
further,  That  no  suit  brought  in  any  state  court  of  competent 
jurisdiction  against  a  railroad  company,  or  other  corpora- 
tion, or  person,  engaged  in  carrying  on  the  business  of  a  com- 
mon carrier,  to  recover  damages  for  delay,  loss  of,  or  injury 
to  property  received  for  transportation  by  such  common 
carrier  under  section  twenty  of  the  act  to  regulate  commerce, 
approved  February  fourth,  eighteen  hundred  and  eighty- 
seven,  as  amended  June  twenty-ninth,  nineteen  hundred  and 
six,  April  thirteenth,  nineteen  hundred  and  eight,  February 
twenty-fifth,  nineteen  hundred  and  nine,  and  June  eighteenth, 
nineteen  hundred  and  ten,  shall  be  removed  to  any  court 
of  the  United  States  where  the  matter  in  controversy  does 
not  exceed,  exclusive  of  interest  and  costs,  the  sum  or  value 
of  $3,000." 

§  300.  Class  Five ;  Suits  between  Citizens  of  a  State  under 
Land  Grants  from  Different  States. 

§  SO,  Judicial  Code,0  36  Stat.  at  L.  1096,  Comp.  St..  1911, 
p.  142,  1912  Supp.  F.  S.  A.  v.  1,  p.  146.  "If  in  any  action 
commenced  in  a  state  court  the  title  of  land  be  concerned, 
and  the  parties  are  citizens  of  the  same  state,  and  the  matter 
in  dispute  exceeds  the  sum  or  value  of  three  thousand  dollars, 
exclusive  of  interest  and  costs,  the  sum  or  value  being  made 
to  appear,  one  or  more  of  the  plaintiffs  or  defendants,  before 
the  trial,  may  state  to  the  court,  and  make  affidavit  if  the 
court  require  it,  that  he  or  they  claim,  and  shall  rely  upon,  a 
right  or  title  to  the  land  under  a  grant  from  a  state,  and  pro- 
duce the  original  grant,  or  an  exemplification  of  it,  except 
where  the  loss  of  public  records  shall  put  it  out  of  his  or 
their  power,  and  shall  move  that  any  one  or  more  of  the  ad- 
verse party  inform  the  court  whether  he  or  they  claim  a  right 
or  title  to  the  land  under  a  grant  from  some  other  state,  the 
party  or  parties  so  required  shall  give  such  information,  or 

<*  For  Annotation  of  this  §  30,  Judicial  CoJe,  see  footnote  c,  ante,  our  §  262. 


§    302    REMOVAL    OF    CAUSES JURISDICTION    AND    PROCEDURE    191 

otherwise  not  be  allowed  to  plead  such  grant  or  give  it  in  evi- 
dence upon  the  trial.  If  he  or  they  inform  the  court  that  he 
or  they  do  claim  under  such  grant,  any  one  or  more  of  the 
party  moving  for  such  information  may  then,  on  petition  and 
bond,  as  hereinbefore  mentioned  in  this  chapter,  remove  the 
cause  for  trial  to  the  district  court  of  the  United  States  next 
to  be  holden  in  such  district;  and  any  one  of  either  party 
removing  the  cause  shall  not  be  allowed  to  plead  or  give  evi- 
dence of  any  other  title  than  that  by  him  or  them  stated  as 
aforesaid  as  the  ground  of  his  or  their  claim." 

§  301.  Class  Six;  Removal  of  Suits  of  Aliens  against  Of- 
ficers. 

§  84,  Judicial  Code,9  36  8 tat.  at  L.  1098,  Comp.  St.  1911, 
p.  145,  1912  Supp.  F.  S.  A.  v.  1,  p.  149.  "Whenever  a  per- 
sonal action  has  been  or  shall  be  brought  in  any  state  court 
by  an  alien  against  any  citizen  of  a  state  who  is,  or  at  the 
time  the  alleged  action  accrued  was,  a  civil  officer  of  the 
United  States,  being  a  nonresident  of  that  state  wherein  ju- 
risdiction is  obtained  by  the  state  court,  by  personal  service 
of  process,  such  action  may  be  removed  into  the  district  court 
of  the  United  States  in  and  for  the  district  in  which  the  de- 
fendant shall  have  been  served  with  the  process,  in  the  same 
manner  as  now  provided  for  the  removal  of  an  action  brought 
in  a  state  court  by  the  provisions  of  the  preceding  section." 

§  302.  Class  Seven ;  Removal  of  Civil  Rights  Cases. 

§  81,  Judicial  Code*  36  8 tat.  at  L.  1096,  Comp.  St.  1911, 
p.  143,  1912  Supp.  F.  S.  A.  v.  1,  p.  147.  "When  any  civil 
suit  or  criminal  prosecution  is  commenced  in  any  state 
court,  for  any  cause  whatsoever,  against  any  person  who  is 
denied  or  can  not  enforce  in  the  judicial  tribunals  of  the 
state,  or  in  the  part  of  the  state  where  such  suit  or  prosecu- 
tion is  pending,  any  right  secured  to  him  by  any  law  provid- 
ing for  the  equal  civil  rights  of  citizens  of  the  United  States, 
or  of  all  persons  within  the  jurisdiction  of  the  United  States, 
or  against  any  officer  civil  or  military,  or  other  person,  for 
any  arrest  or  imprisonment  or  other  trespasses  or  wrongs 
made  or  committed  by  virtue  of  or  under  color  of  authority 

P  Re-enacting  §  644,  R.  S.,  Rose's  Code,  §  160,  Foster's  led.  Pra'c.  (4th  ed.) 
p.  1457,  Comp.  St.  1901,  p.  523,  4  F.  S.  A.  264,  which  section  is  repealed  by 
§  297.  Judicial  Code.  In  general,  Hall  et  al.  v.  Great  Northern  Ry.  Co.  197 
Fed.  488. 

a  For  Annotation  of  this  §  31,  Judicial  Code,  see  footnote  b,  ante  our  §  216. 


192        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  303 

derived  from  any  law  providing  for  equal  rights  as  afore- 
said, or  for  refusing  to  do  any  act  on  the  ground  that  it  would 
be  inconsistent  with  such  law,  such  suit  or  prosecution  may, 
upon  the  petition  of  such  defendant,  filed  in  said  state  court 
at  any  time  before  the  trial  or  final  hearing  of  the  cause, 
stating  the  facts  and  verified 'by  oath,  be  removed  for  trial 
into  the  next  district  court  to  be  held  in  the  district  where  it 
is  pending.  Upon  the  filing  of  such  petition  all  further  pro- 
ceedings in  the  state  courts  shall  cease,  and  shall  not  be  re- 
sumed except  as  hereinafter  provided.  But  all  bail  and  other 
security  given  in  such  suit  or  prosecution  shall  continue  in 
like  force  and  effect  as  if  the  same  had  proceeded  to  final 
judgment  and  execution  in  i,he  state  court.  It  shall  be  the 
duty  of  the  clerk  of  the  state  court  to  furnish  such  defend- 
ant, petitioning  for  a  removal,  copies  of  said  process  against 
him,  and  of  all  pleadings,  depositions,  testimony,  and  other 
proceedings  in  the  case.  If  such  copies  are  filed  by  said 
petitioner  in  the  district  court  on  the  first  day  of  its  session, 
the  cause  shall  proceed  therein  in  the  same  manner  as  if  it 
had  been  brought  there  by  original  process;  and  if  the  said 
clerk  refuses  or  neglects  to  furnish  such  copies,  the  petitioner 
may  thereupon  docket  the  case  in  the  district  court,  and  the 
said  court  shall  then  have  jurisdiction  therein,  and  may, 
upon  proof  of  such  refusal  or  neglect  of  said  clerk,  and  upon 
reasonable  notice  to  the  plaintiff,  require  the  plaintiff  to  file 
a  declaration,  petition,  or  complaint  in  the  cause;  and,  in 
case  of  his  default,  may  order  a  nonsuit  and  dismiss  the  case 
at  the  costs  of  the  plaintiff,  and  such  dismissal  shall  be  a  bar 
to  any  further  suit  touching  the  matter  in  controversy.  But 
if,  without  such  refusal  or  neglect  of  said  clerk  to  furnish 
such  copies  and  proof  thereof,  the  petitioner  for  removal  fails 
to  file  copies  in  the  district  court,  as  herein  provided,  a 
certificate,  under  the  seal  of  the  district  court,  stating  such 
failure,  shall  be  given,  and  upon  the  production  thereof 
in  said  state  court  the  cause  shall  proceed  therein  as  if  no 
petition  for  removal  had  been  filed." 

§  303.  Habeas  Corpus  Proceedings  where  Civil  Rights  De- 
nied, and  Other  Cases. 

§  32,  Judicial  Code,*  36  8 tat.  at  L.  1097,  Comp.  St.  1911, 
p.  143,  1912  Supp.  F.  8.  A.  v.  1,  p.  UT.     "When  all  the 

«•  T?p-onacting  §  642,  R.  S..  Rose's  Code,  §  1152,  Foster's  Fed.  Prac.   (4th  ed.) 
pp.  1200.  1458,  1576,  Comp.  St.  1901,  p.  521,  4  F.  S.  A.  260,  changing  the  words 


§    304    REMOVAL    OF    CAUSES JURISDICTION    AND    PROCEDURE    193 

acts  necessary  for  the  removal  of  any  suit  or  prosecution,  as 
provided  in  the  preceding  section,  have  been  performed,  and 
the  defendant  petitioning  for  such  removal  is  in  actual  cus- 
tody on  process  issued  by  said  state  court,  it  shall  be  the  duty 
of  the  clerk  of  said  district  court  to  issue  a  writ  of  habeas 
corpus  cum  causa,  and  of  the  marshal,  by  virtue  of  said  writ, 
to  take  the  body  of  the  defendant  into  his  custody,  to  be 
dealt  with  in  said  district  court  according  to  law  and  the 
orders  of  said  court,  or,  in  vacation,  of  any  judge  thereof; 
and  the  marshal  shall  file  with  or  deliver  to  the  clerk  of  said 
state  court  a  duplicate  copy  of  said  writ." 

§  304.  Class  Eight;  Removal  in  Cases  against  Revenue 
and  Congressional  Officers. 

Pt.  §  33,  Judicial  Code*  36  Slot,  at  L.  1097,  Comp.  St. 
1911,  p.  144,  1912  Supp.  F.  8.  A.  v.  1,  p.  148.  "When  any 
civil  suit  or  criminal  prosecution  is  commenced  in  any  court 
of  a  state  against  any  officer  appointed  under  or  acting  by 
authority  of  any  revenue  law  of  the  United  States  now  or 
hereafter  enacted,  or  against  any  person  acting  under  or  by 
authority  of  any  such  officer,  on  account  of  any  act  done 
under  color  of  his  office  or  of  any  such  law,  or  on  account  of 
any  right,  title,  or  authority  claimed  by  such  officer  or'  other 
person  under  any  such  law;  or  is  commenced  against  any 
person  holding  property  or  estate  by  title  derived  from  any 
such  officer,  and  affects  the  validity  of  any  such  revenue  law ; 
or  when  any  suit  is  commenced  against  any  person  for  (sic) 
on  account  of  anything  done  by  him  while  an  officer  of  either 
House  of  Congress  in  the  discharge  of  his  official  duty,  in 
executing  any  order  of  such  House,  the  said  suit  or  prosecu- 
tion may,  at  any  time  before  the  trial  or  final  hearing  there- 
of, be  removed  for  trial  into  the  district  court  next  to  be 
holden  in  the  district  where  the  same  is  pending,  upon  the 
petition  of  such  defendant  to  said  district  court.  .  .  ." 

"circuit  court,"  to  "district  court,"  which  section  is  repealed  by  §  297,  Judicial 
Code. 

These  proceedings  are  to  be  used  when  the  state  court  does  not  recognize 
the  defendant's  right  to  remove.  Ex  parte  Wells,  Fed.  Cas.  No.  17,386,  3 
Woods,  128.  In  general,  Commonwealth  of  Kentucky  v.  Wendling,  supra. 

»  Combining  §  643,  R.  S.,  Rose's  Code,  §§  138,  1145,  1146,  1147,  1148,  Foster's 
Fed.  Prac.  (4th  ed.)  pp.  43,  1200,  1201,  1462,  1511,  1514,  1528,  1531,  1555, 
1571,  1573,  Comp.  St.  1901,  p.  521,  4  F.  S.  A.  260,  and  first  part  of  §  8,  Sundry 
Civil  Appropriation  Act,  18  Stat.  at  L.  401,  6  F.  S.  A.  613,  which  are  repealed 
by  §  297,  Judicial  Code.  In  general,  City  of  Stanfield  v.  Umatilla  River  Water 
Users. 

Montg. — 13. 


194        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  305 

§  305.  Procedure  on  Removal  under  Class  Eight — Cases 
against  Revenue  or  Congressional  Officers. 

Pt.  §  SS,  Judicial  Code*  36  Stat.  at  L.  1097,  Comp.  St. 
1911,  p.  144f  1912  Supp.  F.  8.  A.  v.  1,  p.  148.  ".  .  .  . 
the  said  suit  or  prosecution  (i.  e.,  against  revenue  or  con- 
gressional officers)  may,  at  any  time  before  the  trial  or  final 
hearing  thereof,  be  removed  for  trial  into  the  district  court 
next  to  be  holden  in  the  district  where  the  same  is  pending, 
upon  the  petition  of  such  defendant  to  said  district  court,  and 
in  the  following  manner :  Said  petition  shall  set  forth  the  na- 
ture of  the  suit  or  prosecution  and  be  verified  by  affidavit, 
and,  together  with  a  certificate  signed  by  an  attorney  or  coun- 
selor at  law  of  some  court  of  record  of  the  state  where  such 
suit  or  prosecution  is  commenced,  or  of  the  United  States, 
stating  that,  as  counsel  for  the  petitioner,  he  has  examined  the 
proceedings  against  him  and  carefully  inquired  into  all  the 
matters  set  forth  in  the  petition,  and  that  he  believes  them 
to  be  true,  shall  be  presented  to  the  said  district  court,  if  in 
session,  or  if  it  be  not,  to  the  clerk  thereof  at  his  office,  and 
shall  be  filed  in  said  office." 

FORM  20. 

PETITION  FOB  REMOVAL  BY  CERTIORABI  IN  ACTION  AGAINST  REVENUE  OFFICERS. 
In  the  District  Court  of,  etc.,  of  the  United  States. 

[Title  of  Cause.] 

To  the  Honorable  Judges  of  the  District  Court  of  the  United  States,  for  the 
Northern   District   of   California. 

The    petition    of    ,    and    ,   the   defendants    above- 
named,  respectfully  showeth:                              -;,i; 

That   before   the   commencement   of   the   suit   above-named,   and   at  all  the 

times  hereinafter  mentioned,  the  said    and    were  and 

now  are  the  duly  appointed  and  qualified  collector  of  internal  revenue  of 
the  United  States  and  deputy  internal  revenue  agent  of  the  United  States, 

respectively,  for  the  first  revenue  district  of  California,  and  the  said 

was  at  such  times  and  is  the  United  States  marshal  for  the  northern  district 
of  California,  all  of  your  petitioners  acting  under  and  by  the  authority  of 
the  internal  revenue  laws  of  the  United  States. 

That  heretofore,  and  on  the  ....   clay  of   ,   .  .  . . ,  one Avas 

the  occupant  and  lessee  of  the  premises,  No.  624  Market  street,  and  the  owner 
and  in  control  of  certain  personal  property  therein  contained,  to  wit :  certain 
machinery,  tools,  implements,  apparatus,  fixtures,  boxes,  barrels,  tobacco 
and  cigars,  shelving  and  counters,  and  other  articles  and  things. 

*  For  Annotation  of  this  §  33,  Judicial  Code,  see  footnote  •,  ante,  §  304. 


§    305  REMOVAL    OF    CAUSES JURISDICTION    AND    PROCEDURE      195 

That  said    on  or  about  said  day,  and  continuously  theretofore 

and  thereafter,  and  while  in  the  occupancy  of  said  premises  and  in  the  owner- 
ship and  control  of  said  personal  property  as  aforesaid,  having  bonded  the 
same  as  a  cigar  and  tobacco  manufactory,  then  and  there  committed  certain 
violations  against  the  said  internal  revenue  laws  of  the  United  States  in 

the  use  and  management  of  said  property,  to  wit,  the  said    did 

then  and  there  and  upon  said  premises  wrongfully,  unlawfully,  and  know- 
ingly, and  contrary  to  the  provisions  of  sections  3372,  3374,  3397,  and  3400 
of  the  Revised  Statutes  of  the  United  States,  remove  from  said  manufactory, 
without  the  proper  stamps  denoting  the  tax  therein,  tobacco  made  therein, 
made  false  and  fraudulent  entries  of  manufactures  and  sales  of  tobacco  (etc.; 
other  charges  specified),  and  committed  other  offenses  against  said  revenue 
laws  of  the  United  States. 

That  thereafter  a  suit  for  divorce  was  instituted  in  the  superior  court 
of  the  city  and  county  of  San  Francisco  within  the  state  and  district  afore- 
said by  against  the  said  ,  her  husband,  and  such  pro- 
ceedings were  thereupon  had  that  a  decree  of  said  superior  court  was  made 
and  entered  granting  the  divorce  and  awarding  said  personal  property  to 

said    ,   subject  to  the   payment  of  certain   claims  alleged  to  have 

been  established  in  said  court  against  her,  and  on  the  ....   day  of   , 

. .  .  . ,  a  receiver, ,  was  appointed  by  said  court  for  said  property. 

That  said  receiver  thereupon  duly  qualified  and  acted  as  such. 

That  thereafter  the  said  receiver  and   ,  the  latter  having,  since 

the  appointment  and  with  the  consent  of  said  receiver,  bonded  the  said 
premises  as  a  cigar  and  tobacco  manufactory,  committed  certain  violations 
against  the  said  internal  revenue  laws  of  the  United  States,  to  wit:  did 
then  and  there  and  upon  the  said  premises  (repeats  the  charges  as  above), 
and  committed  other  offenses  against  the  said  revenue  laws  of  the  United 
States. 

That   heretofore,   and   on   the    ....    day   of    ,   your   petitioners, 

as  such  collector,  and   as  such  internal  revenue  agent, 

seized  said  personal  property  for  the  violations  aforesaid  of  said  laws,  and 

thereafter,  on  the    day  of    ,  said  collector  delivered  the 

same  into  the  custody  of  your  petitioner   ,  as  such  United  States 

marshal,  who  now  holds  the  same  by  virtue  of  such  delivery. 

That  said  receiver  has  not  yet  been  discharged  by  said  superior  court. 
That  heretofore,  and  on  the    ....    day  of    ,   the  suit  above  en- 
titled was  commenced  in   said  superior  court  by   said   receiver,    

against  your  petitioners  for  $20,000  damages  for  an  alleged  wrongful  con- 
version of  said  property  by  reason  of  the  seizure  and  acts  hereinbefore  men- 
tioned. 

That  at  all  of  such  times  your  petitioners  were  acting  under  color  of  their 
said  respective  officers  and  by  authority  of  the  internal  revenue  laws  afore- 
said. 

That  your  petitioners  have  been  served  with  process  in  said  suit,  to  wit: 
with  summons  and  complaint  inaugurating  the  same,  and  said  process  has 
been  served  as  aforesaid  within  this  said  northern  district  of  California,  and 
that  there  has  not  been  as  yet  any  trial  or  final  hearing  of  said  suit. 


196         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  300 

Your  petitioners  therefore  pray  that,  in  pursuance  of  the  statute  of  said 
United  States  in  such  case  made  and  provided,  the  said  suit,  so  commenced 
in  said  superior  court  of  the  city  and  county  aforesaid  against  your  peti- 
tioners, may  be  removed  therefrom  into  this  honorable  court  for  trial  and 
determination,  and  thereupon  proceed  as  a  cause  originally  commenced  in 
the  same;  and  that  a  writ  of  certiorari  in  this  behalf,  for  the  record  and 
proceedings  heretofore  had  in  said  cause  in  said  superior  court,  may  issue 
from  this  honorable  court  to  the  said  superior  court  of  said  city  and  county 
as  by  the  same  statute  is  provided. 


State  and  Northern  District  ) 

S3. 

of    California    f 

,    and    ,  the  above-named  petitioners,  make 

oatli  and  say  that  the  matters  set  forth  in  the  foregoing  petition  are  true 
in  substance  and  in  fact,  the  said  making  oath  upon  informa- 
tion and  belief. 


(Signatures.) 
Subscribed  and  sworn  to,  etc. 

Certificate. 

I,   ,  an  attorney  and  counselor  at  law  of  the  supreme  court 

of  said  state,  and  assistant  United  States  attorney  for  the  northern  district 
of  California,  do  hereby  certify  that  as  counsel  for  the  petitioners  above- 
named  I  have  examined  the  proceedings  against  them  in  the  foregoing  peti- 
tion mentioned,  and  have  carefully  inquired  into  all  the  matters  set  forth  in 
said  petition,  and  that  I  believe  the  same  to  be  true. 


Assistant  United  States  Attorney. 

§  306.  Procedure  after  Removal  in  Class  Eight. 

PL  §  S3,  Judicial  Code,"  36  Stat.  at  L.  1097,  Comp.  St. 
1911,  p.  144,  1912  Su.pp.  F.  S.  A.  v.  1,  p.  148.  "The  cause 
shall  thereupon  be  entered  on  the  docket  of  the  district  court, 
and  shall  proceed  as  a  cause  originally  commenced  in  that 
court ;  but  all  bail  and  other  security  given  upon  such  suit 
or  prosecution  shall  continue  in  like  force  and  effect  as  if  the 
same  had  proceeded  to  final  judgment  and  execution  in  the 
state  court." 

«  For  Annotation  of  this  §  33,  Judicial  Code,  see  footnote  «•,  ante,  §  304. 


§    307     KEMOVAL    OF    CAUSES JURISDICTION    AND    PROCEDURE  197 

§  307.  Certiorari  and  Habeas  Corpus  Proceedings  in  Class 
Eight — Suits  against  Revenue  or  Congressional  Officers. 

Last  Part  §  33,  Judicial  Code*  36  Stat.  at  L.  1097,  Comp. 
St.  1911,  p.  144,  1912  Supp.  F.  8.  A.  v.  1,  p.  148.  ".  .  . 
When  the  suit  is  commenced  in  the  state  court  by  summons, 
subpoena,  petition,  or  other  process  except  capias,  the  clerk 
of  the  district  court  shall  issue  a  writ  of  certiorari  to  the 
state  court,  requiring  it  to  send  to  the  district  court  the  record 
and  proceedings  in  the  cause.  When  it  is  commenced  by 
capias  or  by  any  other  similar  form  or  proceeding  by  which 
a  personal  arrest  is  ordered,  he  shall  issue  a  writ  of  habeas 
corpus  cum  causa,  a  duplicate  of  which  shall  be  delivered  to 
the  clerk  of  the  state  court,  or  left  at  his  office,  by  the  marshal 
of  the  district  or  his  deputy,  or  by  some  person  duly  author- 
ized thereto ;  and  thereupon  it  shall  be  the  duty  of  the  state 
court  to  stay  all  further  proceedings  in  the  cause,  and  the 
suit  or  prosecution,  upon  delivery  of  such  process,  or  leaving 
the  same  as  aforesaid,  shall  be  held  to  be  removed  to  the 
district  court,  and  any  further  proceedings,  trial,  or  judg- 
ment therein  in  the  state  court  shall  be  void.  If  the  defend- 
ant in  the  suit  or  prosecution  be  in  actual  custody  on  mesne 
process  therein,  it  shall  be  the  duty  of  the  marshal,  by  virtue 
of  the  writ  of  habeas  corpus  cum  causa,  to  take  the  body  of 
the  defendant  into  his  custody,  to  be  dealt  with  in  the  cause 
according  to  law  and  the  order  of  the  district  court,  or,  in 
vacation,  of  any  judge  thereof;  and  if,  upon  the  removal 
of  such  suit  or  prosecution,  it  is  made  to  appear  to  the  dis- 
trict court  that  no  copy  of  the  record  and  proceedings  therein 
in  the  state  court  can  be  obtained,  the  district  court  may  al- 
low and  require  the  plaintiff  to  proceed  de  novo  and  to  file 
a  declaration  of  his  cause  of  action,  and  the  parties  may 
thereupon  proceed  as  in  actions  originally  brought  in  said 
district  court.  On  failure  of  the  plaintiff  so  to  proceed,  judg- 
ment of  non  prosequitur  may  be  rendered  against  him,  with 
costs  for  the  defendant." 

FORM  21. 

ORDEE  FOB  WRIT  OF  CERTIORARI  IN  ACTION  AGAINST  REVENUE  OFFICERS. 
In  the  District  Court,  etc.,  of  the  United  States. 

In  re  the  Petition  of    et  al.,  for  Writ  | 

of  Certiorari  in   v et  al.  $ 

Upon  motion  of   ,  Esq.,  assistant  United  States  attorney,  and  on 

v  For  Annotation  of  this  §  33,  Judicial  Code,  see  footnote  •,  ante,  §  304. 


198        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  307 

filing  petition  of   and    ordered,   that  a  writ  of  certiorari 

issue  herein  to  the  superior  court  of  the  city  and  county  of  San  Francisco, 
requiring  said  court  to  transmit  the  record  and   proceedings   in   said  cause 

of v et  al.,  to  this  court  within  ten  days. 

Further  ordered,  that  said  writ  be  served  by  delivering  to  said  superior 

court  and  to  the  clerk  thereof  each  a  certified  copy  and  that be 

and    he    hereby    is    appointed    an    elisor    to    serve    said    writ    of    certiorari, 
the  marshal  of  this  district,  being  a  party  to  this  proceeding. 


FORM  22. 
WRIT  OF  CERTIORABI  IN  ACTION  AGAINST  REVENUE  OFFICERS. 

In  the  District  Court  of  the  United  States,  within  and  for  Northern  District 

of  California, 

Northern  District  of  California.    ) 

S3 

United  States  of  America,  j 

To  the  Superior  Court  in   and  for  the   City  and  County  of  San   Francisco, 
State   of   California,   Greeting: 

Being    informed    that   there    is    now    pending   before   you    a    suit   wherein 

is  plaintiff,  and and are  defendants, 

which  said  suit  is  brought  for  damages  alleged  to  have  been  suffered  by  said 
plaintiff  by  reason  of  an  alleged  wrongful  conversion  of  certain  property 
by  said  defendants,  the  said  alleged  wrongful  conversion  occurring  while 
said  defendants  were  in  discharge  of  their  duties  as  officers  of  the  United 
States,  under  the  revenue  laws  of  the  United  States,  and  which  said  suit 
has  been  commenced  by  the  service  of  process,  to  wit,  summons  and  complaint 

upon   said    and    and  said  suit  has  not  yet  been 

heard  and  determined. 

Therefore,  we  being  willing  for  certain  reasons  that  said  case  and  the 
records  and  proceedings  heretofore  had  therein  should  be  certified  by  said 
superior  court  and  removed  into  our  district  court  of  the  United  States 

in  and  for  the northern  district  of  California  do  hereby  command  you. 

that  you  send,  without  delay  and  within  ten  days,  to  the  said  district  court 
as  aforesaid,  the  records  and  proceedings  in  said  case,  so  that  the  said 
district  court  may  act  thereon  as  of  right  and  according  to  law  ought  to 
be  done. 

Witness,  the  Honorable   Judge  said  District  Court this 

day  of A.  D 

Clerk   of  the   United   States   District   Court,   in   and   for   the    

Northern  District  of  California. 
[Seal] 


§    309    REMOVAL    OF    CAUSES JURISDICTION    AND    PROCEDURE    199 

§  308.  Proofs  of  Records  When  Copies  Refused  by  State 
Court  Clerks. 

§  35,  Judicial  Code™  36  Stat.  at  L.  1098,  Comp.  St.  1911, 
p.  145,  1912  Supp.  F.  S.  A.  v.  1,  p.  14.9.  "In  any  case 
where  a  party  is  entitled  to  copies  of  the  records  and  pro- 
ceedings in  any  suit  or  prosecution  in  a  state  court,  to  be  used 
in  any  court  of  the  United  States,  if  the  clerk  of  said  state 
court,  upon  demand,  and  the  payment  or  tender  of  the  legal 
fees,  refuses  or  neglects  to  deliver  to  him  certified  copies 
of  such  records  and  proceedings,  the  court  of  the  United 
States  in  which  such  records  and  proceedings  are  needed 
may,  on  proof  by  affidavit  that  the  clerk  of  said  state  court 
has  refused  or  neglected  to  deliver  copies  thereof,  on  demand 
as  aforesaid,  direct  such  record  to  be  supplied  by  affidavit  or 
otherwise,  as  the  circumstances  of  the  case  may  require  and 
allow;  and  thereupon  such  proceeding,  trial,  and  judgment 
may  be  had  in  the  said  court  of  the  United  States,  and  all 
such  processes  awarded,  as  if  certified  copies  of  such  records 
and  proceedings  had  been  regularly  before  the  said  court." 

§  309.  Enforcement  of  Return  of  Record  from  State  to 
Federal  Courts. 

§  39,  Judicial  Code*  36  Stat.  at  L.  1099,  Comp.  St.  1911, 
p.  146,  1912  Supp.  F.  8.  A.  v.  1,  p.  150.  "In  all  causes 
removable  under  this  chapter,  if  the  clerk  of  the  state  court 
in  which  any  such  cause  shall  be  pending  shall  refuse  to  any 
one  or  more  of  the  parties  or  persons  applying  to  remove  the 
same,  a  copy  of  the  record  therein,  after  tender  of  legal  fees 
for  such  copy,  said  clerk  so  offending  shall,  on  conviction 
thereof  in  the  district  court  of  the  United  States  to  which  said 
action  or  proceeding  was  removed,  be  fined  not  more  than  one 
thousand  dollars,  or  imprisoned  not  more  than  one  year,  or 
both.  The  district  court  to  which  any  cause  shall  be  remov- 
able under  this  chapter  shall  have  power  to  issue  a  writ  of 
certiorari  to  said  state  court  commanding  said  state  court  to 
make  return  of  the  record  in  any  such  cause  removed  as  afore- 
said, or  in  which  any  one  or  more  of  the  plaintiffs  or  defend- 
ants have  complied  with  the  provisions  of  this  chapter  for  the 

w  Re-enacting  §  645,  R.  S.,  Rose's  Code,  §§  396,  1805,  Comp.  St.  1901, 
p.  523,  4  F.  S.  A.  264,  which  section  is  repealed  by  §  297,  Judicial  Code.  In 
general,  Sherman  v.  Grinnell,  123  U.  S.  679,  31  L.  ed.  278,  8  Sup.  Ct.  Rep.  260. 

x  Re-enacting  18  Stat.  at  L.  472,  Comp.  St.  1901,  p.  512,  4  F.  S.  A.  378, 
which  statute  is  repealed  by  §  297,  Judicial  Code.  In  general,  Goldberg, 
Bowen  &  Co.  Inc.  v.  German  Ins.  Co.  of  Freeport,  111..  152  Fed.  831. 


200  MON  I(i()MKI£Y's   MANUAL   OF  FEDERAL   PROCEDURE        §    309 

removal  of  the  same,  and  enforce  said  writ  according  to  law. 
If  it  shall  be  impossible  for  the  parties  or  persons  removing 
any  cause  under  this  chapter,  or  complying  with  the  pro- 
visions for  the  removal  thereof,  to  obtain  such  copy,  for  the 
reason  that  the  clerk  of  said  state  court  refuses  to  furnish 
a  copy,  on  payment  of  legal  fees,  or  for  any  other  reason,  the 
district  court  shall  make  an  order  requiring  the  prosecutor  in 
any  such  action  or  proceeding  to  enforce  forfeiture  or  recover 
penalty,  as  aforesaid,  to  file  a  copy  of  the  paper  or  proceeding 
by  which  the  same  was  commenced,  within  such  time  as  the 
court  may  determine;  and  in  default  thereof  the  court  shall 
dismiss  the  said  action  or  proceeding;  but  if  said  order  shall 
be  complied  with,  then  said  district  court  shall  require  the 
other  party  to  plead,  and  said  action  or  proceeding  shall  pro- 
ceed to  final  judgment.  The  said  district  court  may  make  an 
order  requiring  the  parties  thereto  to  plead  de  novo;  and  the 
bond  given,  conditioned  as  aforesaid,  shall  be  discharged  so 
far  as  it  requires  copy  of  the  record  to  be  filed  as  aforesaid." 

FORM  23. 
WRIT  OF  CEBTIORARI  UNDER  §  39,  JUDICIAL  CODE. 

The  President  of  the  United  States  of  America  to  the  Judge  of  the  [describe 
the   court],   Greeting: 

Whereas,  it  has  been  represented  to  the  district  court  of  the  United  States 

for  the  district  of  ,  that  a  certain  suit  was  commenced  in  the 

[state  court],  wherein  A,  a  citizen  and  resident  of  the  state  of  

was  plaintiff,  and  Z,  a  citizen  of  the  state  of  was  defendant,  and 

that  the  said  Z  duly  tiled  in  the  said  state  court  his  petition  for  the  re- 
moval of  said  cause  into  the  said  district  court  of  the  United  States,  and 
filed  witli  said  petition  the  bond  with  surety  required  by  law,  and  that  the 
clerk  of  said  state  court  has  refused  to  said  petitioner  for  the  removal  of 
said  cause  a  copy  of  the  record  therein,  though  his  legal  fees  therefor  were 
tendered  by  said  petitioner. 

You,  therefore,  are  hereby  commanded  that  you  forthwith  certify  or  cause 

to  be  certified  to  the  said  district  court  of  the  United  States  for  the , 

district  of  ,  a  full,  true,  and  complete  copy  of  the  record  and 

proceedings  in  said  cause  in  which  the  said  petition  for  removal  was  filed 
as  aforesaid,  plainly  and  distinctly,  and  in  as  full  and  ample  a  manner  as 
the  same  now  remain  before  you,  together  with  this  writ;  so  that  the  said 
district  court  may  be  able  to  proceed  thereon  and  do  what  shall  appear  to 
them  of  right  ought  to  be  done.  Herein  fail  not. 

Witness,  the  Honorable  Judge  of  said  district  court,  and 

the  seal  of  the  said court  hereto  affixed,  the  ....  day  of , 


Clerk  of  the  said  District  Court. 


§    310  REMOVAL  OF  CAUSES JURISDICTION  AND  PEOCEDURE         201 

§  310.  Remand  or  Dismissal  of  Case  Fraudulently  or  Im- 
properly Removed. 

§  37,  Judicial  Code*  36  8  tat.  at  L.  1098,  Comp.  St.  1911, 
p.  146,  1912  Supp.  F.  8.  A.  v.  1,  p.  11+9.  "If  in  any  suit 
commenced  in  a  district  court,  or  removed  from  a  state  court 
to  a  district  court  of  the  United  States,  it  shall  appear  to  the 
satisfaction  of  said  district  court,  at  any  time  after  such  suit 
has  been  brought  or  removed  thereto,  that  such  suit  does  not 
really  and  substantially  involve  a  dispute  or  controversy  prop- 
erly within  the  jurisdiction  of  said  district  court,  or  that  the 
parties  to  said  suit  have  improperly  or  collusively  made  or 
joined,  either  as  plaintiffs  or  defendants,  for  the  purpose  of 
creating  a  case  cognizable  or  removable  under  this  act,  the 
said  district  court  shall  proceed  no  farther  therein,  but  shall 
dismiss  the  suit  or  remand  it  to  the  court  from  which  it  was 
removed,  as  justice  may  require,  and  shall  make  such  order 
as  to  costs  as  shall  be  just." 

FORM  24. 

MOTION  TO  REMAND  ON  THE  GROUND  OF  No  JURISDICTION,  UNDER  §  37,  JUDICIAL 

CODE. 

[Title  of  Federal  Court  and  Cause.] 
Now  comes  the  plaintiff  and  moves  this  court  to  remand  the  above-entitled 

cause  to  the  superior  court  in  and  for  the  county  of  ,  in  the  state 

of   ,  on  the.  ground  that  this  court  is  without  jurisdiction  to  hear 

and  determine  the  cause.     (Set  out  in  what  respects  jurisdiction  is  lacking.) 


Attorneys  for  plaintiff. 
FORM  25. 

ORDER  REMANDING  CAUSE. 
At  a  Stated  Term,  etc. 

Present,  The  Honorable,  etc. 

[Title  of  Federal  Court  and  Cause.] 

Plaintiff's  motion  to  remand  heretofore  heard  and  submitted  to  the  court 
for  consideration  and  decision  having  been  fully  considered,  and  the  opinion 
of  the  court  having  been  delivered,  it  is  in  accordance  with  said  opinion. 

y  Re-enacting  18  Stat.  at  L.  472,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  449,  958, 
1016,  1022,  1457,  1614,  Comp.  St.  1901,  p.  511,  4  F.  S.  A.  371,  which  section 
is  repealed  by  §  297,  Judicial  Code.  In  general,  Atlantic  Dynamite  Co.  v. 
Reger  et  al.  200  Fed.  1002. 


202        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  312 

Ordered  that  said  motion  bo,  and  the  same  is,  granted,  and  that  this 
cause  be,  and  the  same  is  hereby,  remanded  to  the  superior  court  of  the 
county  of  Amador,  state  of  California,  for  further  proceedings. 


Judge  United  States  District  Court. 


§  311.  Provisional  Remedies  of  State  Court  Preserved — 
Bonds  Given  in  State  Suit — Valid  on  Removal. 

§  86,  Judicial  Code*  36  Stat.  at  L.  1098,  Comp.  St.  1911, 
pp.  145,  146,  1912  Supp.  F.  8.  A.  v.  1,  p.  149.  "When  any 
suit  shall  be  removed  from  a  state  court  to  a  district  court 
of  the  United  States,  any  attachment  or  sequestration  of  the 
goods  or  estate  of  the  defendant  had  in  such  suit  in  the  state 
court  shall  hold  the  goods  or  estate  so  attached  or  sequestered 
to  answer  the  final  judgment  or  decree  in  the  same  manner 
as  by  law  they  would  have  been  held  to  answer  final  judgment 
or  decree  had  it  been  rendered  by  the  court  in  which  said 
suit  was  commenced.  All  bonds,  undertakings,  or  security 
given  by  either  party  in  such  suit  prior  to  its  removal  shall 
remain  valid  and  effectual  notwithstanding  said  removal ; 
and  all  injunctions,  orders,  and  other  proceedings  had  in  such 
suit  prior  to  its  removal  shall  remain  in  full  force  and  effect 
until  dissolved  or  modified  by  the  court  to  which  such  suit 
shall  be  removed." 

§  312.  Proceedings  after  Removal — Generally. 

§  38,  Judicial  Code,9-  36  Stat.  at  L.  1098,  Comp.  St.  1911, 
p.  146,  1912  Supp.  F.  S.  A.  v.  1,  p.  150.  "The  district 
court  of  the  United  States  shall,  in  all  suits  removed  under 
the  provisions  of  this  chapter,  proceed  therein  as  if  the  suit 
had  been  originally  commenced  in  said  district  court,  and  the 
same  proceedings  had  been  taken  in  such  suit  in  said  district 
court  as  shall  have  been  had  therein  in  said  state  court  prior 
to  its  removal." 

"Drawn  from  18  Stat.  at  L.  471,  Foster's  Fed.  Prac.  (4th  ed.)  p.  1456, 
Comp.  St.  1901,  p.  511,  4  F.  S.  A.  370,  which  section  superseded  §  646,  R.  S. 
Comp.  St.  1901,  p.  523,  4  F.  S.  A.  264,  which  are  repealed  by  §  297,  Judicial 
Code.  In  general,  Wolf  et  al.  v.  Cook  et  al.  40  Fed.  432. 

a  Re-enacting  18  Stat.  at  L.  472,  Comp.  St.  1901,  p.  512,  4  F.  S.  A.  378, 
which  section  is  repealed  by  §  297,  Judicial  Code.  In  general,  Leo  v.  Union 
Pac.  Ry.  Co.  19  Fed.  283,  and  another,  Leo  v.  Union  Pac.  R.  Co.  17  Fed.  273. 


CHAPTEK  11. 

REMOVAL  FROM  STATE  COURT  OF  LAST  RESORT  TO  UNITED  STATES 
SUPREME  COURT  BY  WRIT  OF  ERROR— JURISDICTION. 

See. 

,330.  In  General. 

331.  Statute  Regulating  Removal  by  Writ  of  Error. 

332.  Only  Appellate  Review  of  State  Courts. 

333.  What  Judgment  and  Decrees  Removable. 

334.  Classification  of  Cases  Reviewable. 

335.  Decision  of  State  Court  against  the  Validity  of  a  Federal  Treaty,  Statute, 

or  Authority — Their  Validity   Having  Been  Drawn   in  Question. 
330.  Decisions  in  Favor  of  State  Statutes  whose  Authority  Drawn  in  Question 
as  Repugnant  to  the  Federal  Constitution,   Laws,  or  Treaties. 

337.  Decision    against   Right,    Title,   Privilege,   or   Immunity    Claimed   under 

United    States    Constitution,    Treaty,    Statute,    Authority,    or    Com- 
mission, 

338.  General  Propositions  Flowing  from  §  237,  Judicial  Code. 

339.  Procedure  on  Removal  from  State  Courts  of  Last  Resort. 

§  330.  In  General.  In  addition  to  the  removal  of  causes 
from  state  to  Federal  courts  as  treated  in  chapter  10,  cases  may 
be  removed  to  the  Supreme  Court  of  the  United  States  under  § 
237,  Judicial  Code,  after  they  have  been  finally  decided  by  the 
highest  state  court  having  jurisdiction  of  the  cause. 

The  grounds  of  removal  under  this  section  are  more  restricted 
than  those  previously  enumerated,  extending  only  to  cases  in 
which  the  decision  of  a  state  court  is  adverse  to  the  Federal  Con- 
stitution, treaties,  laws,  or  authority,  or  to  a  right,  title,  priv- 
ilege, or  immunity  claimed  thereunder,  the  purpose  of  the  re- 
view by  the  Supreme  Court  being  to  preclude  any  possibility  of 
unconstitutional  legislation  by  state  courts. 

The  procedure  upon  removal  under  this  section  is  identical 
with  that  upon  writ  of  error  to  the  Federal  courts,1  and  the 

lOur  §   825,  post. 

203 


204:        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE 

discussion  of  appellate  procedure  at  law  in  chapter  28,  applies 
to   procedure   here. 

§  331.  Statute  Regulating  Removal  by  Writ  of  Error. 

§  287,  Judicial  Code,*  36  Stat.  at  L.  1156,  Comp.  St. 
1911,  p.  227,  '1912  Supp.  F.  8.  A.  v.  1,  p.  230.  "A  final 
judgment  or  decree  in  any  suit  in  the  highest  court  of  a 
state  in  which  a  decision  in  the  suit  could  be  had,  where 
is  drawn  in  question  the  validity  of  a  treaty  or  statute  of, 
or  an  authority  exercised  under,  the  United  States,  and  the 
decision  is  against  their  validity;  or  where  is  drawn  in 
question  the  validity  of  a  statute  of  or  an  authority  exercised 
under  any  state,  on  the  ground  of  their  being  repugnant 
to  the  Constitution,  treaties,  or  laws  of  the  United  States, 
and  the  decision  is  in  favor  of  their  validity;  or  where  any 
title,  right,  privilege,  or  immunity  is  claimed  under  the 
Constitution,  or  any  treaty  or  statute  of,  or  commission  held 
or  authority  exercised  under  the  United  States,  and  the  de- 
cision is  against  the  title,  right,  privilege,  or  immunity  es- 
pecially set  up  or  claimed,  by  either  party,  under  such  Con- 
stitution, treaty,  statute,  commission,  or  authority,  may  be 
re-examined  and  reversed  or  affirmed  in  the  Supreme  Court 
upon  a  writ  of  error.  The  writ  shall  have  the  same  effect 
as  if  the  judgment  or  decree  complained  of  had  been  rendered 
or  passed  in  a  court  of  the  United  States.  The  Supreme 
Court  may  reverse,  modify,  or  affirm  the  judgments  or  de- 
cree of  such  state  court,  and  may  at  their  discretion  award 
execution  or  remand  the  same  to  the  court  from  which  it 
was  removed  by  the  writ." 

§  332.  Only  Appellate  Review  of  State  Courts.  This  sec- 
tion re-enacts  §  709,  R.  S.,  the  language  of  that  section  being  un- 
changed. 

It  provides  the  only  method  by  which  the  judgments  or  decrees 
of  the  highest  courts  of  the  states  having  jurisdiction  of  the  suits 
can  be  reviewed  by  the  United  States  Supreme  Court,  and  conse- 
quently writs  of  error  can  only  issue  to  the  state  courts  in  cases 

«  Re-enacting  §  709,  R.  R..  Rose's  Code,  §§  2120,  2018,  Foster's  Fod  Prae 
(4th  ed.)  pp.  1588,  158!),  1028,  1620.  15)63.  1!)68,  19!)9,  2001,  2044,  2132,  21f>8. 
Comp.  St.  1901,  p.  575,  4  F.  S.  A.  467,  which  section  is  repealed  by  §  297,' 
Judicial  Code.  Writ  of  Error,  see  chap.  28,  infra. 


§    333  WKITS    OF    ERROR    TO    STATE    COURTS  205 

within  its  purview.2     Stipulation  by  parties  to  the  cause  cannot 
confer  jurisdiction  upon  the  Supreme  Court.8 

§  333.  What  Judgment  and  Decrees  Removable.  It  is  only 
''final  judgments  or  decrees  4  of  the  highest  court  of  a  state  in 
which  a  decision  of  the  suit  could  be  had/'  that  are  reviewable 
under  this  section.  This  does  not  limit  the  jurisdiction  to  the  high- 
est court  of  the  state,  but  only  to  the  highest  court  having  jurisdic- 
tion of  the  particular  cause  to  be  reviewed.6 

If,  however,  the  state  court  to  which  the  writ  of  error  is  to  be 
addressed  is  not  the  highest  court  of  the  state,  the  record  must 
affirmatively  show  that  a  decision  of  the  case  could  not  have  been 
had  in  such  court.6  "Any  suit,"  within  the  meaning  of  this  sec- 
tion, has  been  held  to  include  a  proceeding  for  mandamus  ;7  a  pro- 
ceeding for  a  writ  of  prohibition  to  restrain  a  municipal  corpora- 
tion from  carrying  an  ordinance  into  effect ;  8  but  an  order  made  by 
a  judge  in  chambers,  remanding  a  prisoner  in  habeas  corpus  pro- 
ceedings, is  not  reviewable.9 

2  Cohens   v.   Virginia,    6   Wheat.   264,   5   L.   ed.   257 ;    Verden   v.    Coleman, 
22   How.   192,   16  L.  ed.  336:    Dower  v.  Richards,   151   U.   S.  658,  38  L.   ed. 
305,   14   Sup.   Ct.   Rep.   452,   17   Mor.  Min.   Rep.   704;    Capitol  Nat.   Bank   v. 
Cadiz  Nat.  Bank,  172  U.  S.  425,  43  L.  ed.  502,  19  Sup.  Ct.  Rep.  202. 

3  Mills  v.  Brown,  16  Pet.  525,  10  L.  ed.  1055. 

«McKnight  v.  James,  155  U.  S.  687,  39  L.  ed.  310,  15  Sup.  Ct.  Rep.  248; 
Great  Western  Tel.  Co.  v.  Burnham,  162  U.  S.  341,  40  L.  ed.  991,  16  Sup. 
Ct.  Rep.  850. 

5  Sullivan  v.  Texas,  207   U.  S.  416,  52  L.  ed.  274,  28  Sup.  Ct.  Rep.   215 ; 
Bacon  v.  Texas,  163  U.  S.  207,  41  L.  ed.  132,  16  Sup.  Ct.  Rep.  1023;  Fisher  v. 
i'erkins,  122  U.  S.  522,  30  L.  ed.  1192,  7  Sup.  Ct.  Rep.  1227;  Great  Western 
Tel.  Co.  v.   Burnham,  162  U.  S.  339,  40  L.  ed.  991,   16  Sup.  Ct.   Rep.   850; 
Clark  v.  Com.  128  U.  S.  395,  32  L.  ed.  487,  9  Sup.  Ct.  Rep.  113;  Gregory  v. 
McVeigh,  23  Wall.  294,  23  L.  ed.  156;   Stanley  v.  Schwalby,   162  U.  S.  255, 
40  L.  ed.  960,  16  Sup.  Ct.  Rep.  754;  Williams  v.  Bruffy,  102  U.  S.  248,  26  L. 
ed.    135;    Downham   v.    Alexandria,   9    Wall.   659,    19    L.    ed.   807;    Tinsley   v. 
Anderson,    171    U.    S.    101,   43   L.   ed.   91,    18    Sup.    Ct.   Rep.   805;    Pepke   v. 
Cronan,  155  U.  S.  100,  39  L.  ed.  84,  15  Sup.  Ct.  Rep.  34;   Newport  Lt.  Co. 
v.   Newport,   151   U.   S.  527,   38  L.  ed.  259,   14   Sup.   Ct.   Rep.   1150,  but  see 
Olney  v.  Arnold,  3  Dall.  308,  1  L.  ed.  614,  as  to  what  is  "highest  court  of 
State." 

6  Fisher  v.  Perkins,  122  U.  S.  522,  30  L.  ed.     1192,  7  Sup.  Ct.  Rep.  1227; 
Mullen  v.  Western  Union  Beef  Co.  173  U.  S.  116,  43  L.  ed.  635,  19  Sup.  Ct. 
Rep.  404. 

'McPherson  v.  Blacker,  146  U.  S.  1,  36  L.  ed.  869,  13  Sup.  Ct.  Rep.  3; 
Hartman  v.  Greenhow,  102  U.  S.  672,  26  L.  ed.  271;  American  Exp.  Co.  v. 
.Michigan,  177  U.  S.  404,  44  L.  ed.  823,  20  Sup.  Ct.  Rep.  695. 

8  Weston  v.  Charlestown,  2  Pet.  449,  7  L.  ed.  481. 

SMcKnight  v.  James,  155  U.  S.  685,  39  L.  ed.  310.  15  Sup.  Ct.  Rep.  248. 
See  also  Holmes  v.  Jennison,  14  Pet.  540,  10  L.  ed.  579. 


206        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  335 

§  334.  Classification  of  Cases  Reviewable.  It  is  to  be  not- 
ed that  this  section  confers  appellate  jurisdiction  in  three  classes 
of  cases: 

1.  Where  the  decision  of  the  state  court  is  against  the  validity 
of  a  treaty  or  statute  of,  or  an  authority  exercised  under  the 
United  States,  their  validity  having  been  drawn  in  question.     (§ 
335.) 

2.  Where  the  decision  of  the  state  court  is  in  favor  of  the  valid- 
ity of  a  statute  or  authority  exercised  under  any  state,  on  the 
ground  of  their  being  repugnant  to  the  Constitution,  treaties,  or 
laws  of  the  United  States,  the  validity  of  such  statute  or  author- 
ity having  been  drawn  in  question.     (§  336.) 

3.  Where  the  decision  of  the  state  court  is  against  the  title, 
right,  privilege,  or  immunity  claimed  under  the  Constitution  or 
any  treaty  or  statute  of,  or  commission  held,  or  authority  ex- 
ercised under  the  United  States.     (§  337.) 

§  335.  Decision  of  State  Court  against  the  Validity  of  a 
Federal  Treaty,  Statute,  or  Authority,  Their  Validity  Having 
Been  Drawn  in  Question.  The  state  court  must  have  decided 
against  the  validity  of  the  treaty  or  statute;  otherwise  there  is 
no  right  of  review.10 

The  validity  of  the  statute,  treaty,  or  authority  must  be  "drawn 
in  question"  if  there  is  to  be  a  review  of  the  decision  thereon  by 
writ  of  error.  In  order  to  be  "drawn  in  question,"  within  the 
meaning  of  the  section,  it  is  not  enough  that  rights  claimed  under 
a  treaty  or  statute  are  controverted,  or  that  acts  are  done  which 
dispute  the  authority.11  But  the  validity  of  a  statute  is  "drawn 

10  Gordon  v.  Coldcleugh,  3  Cranch,  268,  2  L.  ed.  436;  Mclntire  v.  Wood, 
7  Cranch,  504,  3  L.  ed.  420;  McClung  v.  Silliman,  6  Wheat.  598,  5  L.  ed. 
340;  Williams  v.  Norris,  12  Wheat.  117,  6  L.  ed.  571;  Montgomery  v.  Hernan- 
dez, 12  Wheat.  129,  6  L.  ed.  575;  Menard  v.  Aspasia,  5  Pet.  505,  8  L.  ed. 
207;  Strodler  v.  Baldwin,  9  How.  261,  13  L.  ed.  130;  Ableman  v.  Booth,  21 
How.  506,  16  L.  ed.  169;  Reddall  v.  Bryan.  24  How.  420,  16  L.  ed.  740; 
Ryan  v.  Thomas,  4  Wall.  603,  18  L.  ed.  460;  Baker  v.  Baldwin,  187  U.  S.  61, 
47  L.  ed.  75,  23  Sup.  Ct.  Rep.  19. 

"Kennard  v.  Nebraska,  186  U.  S.  304,  46  L.  ed.  1175,  22  Sup.  Ct.  Rep. 
879;  Florida  Cent.  R.  Co.  v.  Bell,  176  U.  S.  321,  44  L.  ed.  486,  20  Sup. 
Ct.  Rep.  399;  Blackburn  v.  Portland  Gold  Min.  Co.  175  U.  S.  571,  44  L.  ed. 
276,  20  Sup.  Ct.  Rep.  222.  20  Mor.  Min.  Rep.  358:  Telluride  Power  Trans. 
Co.  v.  Rio  G.  W.  R.  Co.  175  U.  S.  639,  44  L.  ed.  305,  20  Sup.  Ct.  Rep.  245; 


§    335  WKITS    OF    EKKOli    TO    STATE    COURTS  207 

in  question"  whenever  the  power  to  enact  it  as  it  is  by  its  terms, 
or  is  made  to  read  by  construction,  is  fairly  open  to  denial  and  is 
denied.12  "Authority  exercised  under  the  United  States"  must 
be  real  and  existing, — not  merely  asserted.  "Authority,"  as  used 
^in  the  section,  stands  upon  the  same  footing  as  a  treaty  or  statute ; 
and  if  from  the  record  it  appears  that  the  authority  did  not  exist 
or  was  not  in  force,  the  decision  of  the  state  court  will  not  be  re- 
viewed.13 But  the  validity — not  the  exercise  of  the  authority 
merely — must  be  drawn  in  question.14 

And  there  is  a  palpable  difference  between  the  denial  of  the 
validity  of  the  authority  and  a  denial  of  a  title,  privilege,  or  right 
or  immunity  claimed  under  it.  A  denial  of  the  latter  does  not 
present  a  Federal  qiiestion.15  "Authority,"  as  used  in  the  section, 
is  construed  to  mean  personal  authority,  and  not  an  abstract  righi 
created  under  a  statute.16  Consequently  this  clause  has  been 
applied  in  those  cases  in  which  the  authority  exercised  by  a 
public  officer  of  the  United  States  has  been  called  in  question, — 
not  where  a  general  right  is  set  up  under  a  statute.17  Thus,  a 
decision  against  the  validity  of  the  authority  of  the  President  of 

Columbia  W.  P.  Co.  v.  Col.  E.  S.  R.  C.  172  U.  S.  475,  43  L.  ed.  521,  19 
Sup.  Ct.  Rep.  247;  Borgmeyer  v.  Idler,  159  U.  S.  408,  40  L.  ed.  199,  16 
Sup.  Ct.  Rep.  34;  Bushnell  v.  Crooke  Min.,  etc.,  Co.  148  U.  S.  682,  37  L.  ed. 
610,  13  Sup.  Ct.  Rep.  771;  Cook  County  v.  Calumet  C.,  etc.,  Co.  138  U.  S. 
635,  34  L.  ed.  1110,  11  Sup.  Ct.  Rep.  435;  Ferry  v.  King  County,  14  U.  S. 
668 ;  Baltimore  Ry.  Co.  v.  Hopkins,  130  U.  S.  210,  32  L.  ed.  908,"  9  Sup.  Ct. 
Rep.  f>03. 

12  Baltimore  Ry.  Co.  v.  Hopkins,  130  U.  S.  210,  32  L.  ed.  908.  9  Snp.  Ct. 
Rep.  503;   Miller*  v.  Cornwall  Ry.  Co.  138  U.  S.  131,  42  L.  ed.  409,  18  Sup. 
Ct.  Rep.  34. 

13  Millinger  v.  Hartupee,  6  Wall.  258,  18  L.  ed.  829. 

14  Walsh  v.   Columbus   R.   Co.   176   U.   S.   469.   44  L.   ed.   548,  20   Sup.   Ct. 
Rep.  393;   Hamblin  v.   Western  Land   Co.   147   U.   S.  531,  37  L.  ed.  267,   13 
Sup.  Ct.  Rep.  353;   New  Orleans  v.  New  Orleans  Water  Wks.  Co.   142  U.  S. 
79,  35  L.  ed.  943,  12  Sup.  Ct.  Rep.  142;  Millinger  v.  Hartupee,  6  Wall.  258, 
18  L.  ed.  829. 

15  Baltimore  R.  Co.  v.  Hopkins,  130  U.  S.  210,  32  L.  ed.  908,  9  Sup.  Ct. 
Rep.  503;  Abbot  v.  Tacoma  Bank  of  Commerce,  175  U.  S.  409,  44  L.  ed.  217, 
20  Sup.  Ct.  Rep.  153;  Cook  County  of  Calumet  Canal  Co.  138  U.  S.  636.  34 
L.  ed.  1110,  11  Sup.  Ct.  Rep.  435; 'United  States  v.  Lynch,  137  U.  S.  280,  34 
L.  ed.  700,  11  Sup.  Ct.  Rep.  114;   Clough  v.  Curtis,  134  U.  S.  361,  33  L.  ed. 
945,  10  Sup.  Ct.  Rep.  573. 

16  Telluridc   Power  Transmission  Company  v.  Rio  Grande  Western   R.  Co. 
175  U.  S.  639,  44  L.  ed.  305,  20  Sup.  Ct.  Rep.  245. 

"McGuire  v.  Cora.  3  Wall.  387,  18  L.  ed.  226:  Millinger  v.  Hartupee.  6 
Wall.  258,  18  L.  ed.  829;  Daniels  v.  Tearney,  102  U.  S.  415,  26  L.  ed.  187; 
Sharpp  v.  Doyle,  102  U.  S.  686,  26  L.  ed.' 277 ;  Buck  v.  Colbath,  3  Wall. 
334,  18  L.  ed.  257. 


208         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  336 

the  United  States  to  approve  a  deed  of  Indian  treaty  lands  is  rc- 
vicwahlc  under  this  clause;18  as  is  the  decision  of  a  state  court 
denying  the  claim  of  a  disbursing  officer  of  the  United  States  that 
money  in  his  hands  due  United  States  seamen  could  not  be  at- 
tached by  process  out  of  a  state  court.19  A  refusal  by  a  state  court 
to  give  effect  to  a  judgment  of  a  United  States  court  rendered  up- 
on the  point  in  dispute,  with  jurisdiction  of  the  case  and  of  the 
parties,  involves  the  denial  of  the  validity  of  an  authority  exercised 
under  the  United  States,  and  may  be  reviewed  by  the  Supreme 
Court.20  A  judgment  of  the  supreme  court  of  the  District  of 
Columbia  is  subject  to  review  under  this  clause.81 

§  336.  Decisions  in  Favor  of  State  Statutes  whose  Author- 
ity Drawn  in  Question  as  Repugnant  to  the  Federal  Constitu- 
tion, Laws,  or  Treaties.  It  is  only  the  statute  of  a  state  which 
can  be  re-examined  under  this  clause,22  and  a  statute  of  a  territory 
is  not  a  statute  of  a  state,  nor  is  it  an  act  of  Congress,  nor  a  statute 
of  the  United  States,  within  the  meaning  of  this  section,  and  con- 
sequently the  decision  of  the  state  courts,  that  the  law  of  a  terri- 
tory is  not  repugnant  to  the  Constitution  of  the  United  States,  is 
not  reviewable.23 

In  considering  this  clause,  it  is  necessary,  as  it  was  in  consider- 
ing the  preceding  one,  to  determine  when  the  validity  of  a  treaty, 
statute,  or  authority  is  "drawn  in  question."  In  order  to  give  the 
Supreme  Court  jurisdiction  to  review  a  judgment  rendered  by 
the  highest  court  of  this  state  in  favor  of  the  validity  of  a  statute 
or  an  authority  exercised  under  a  state,  the  validity  of  the  statute 

18  Pickering  v.  Lomax,  145  U.  S.  310,  36  L.  ed.  716,  12  Sup.  Ct.  Rep.  860. 

19  Buchanan  v.  Alexander,  4  How.  20,  11  L.  ed.  857. 

20  Mutual  L.  Ins.  Co.  v.  McGrew   (1903),  188  U.  S.  311,  47  L.  ed.  480,  23 
Sup.   Ct.   Rep.   375,  63   L.R.A.   33:    Hancock   Nat.   Bank.  v.   Farmun,   176   U. 
S.  640,   44  L.  ed.   619,   20   Sup.   Ct.   Rep.   506;    Dupaaseur   v.   Rochereau,   21 
Wall.   130,   22  L.  ed.  588:    Pittsburgh,   etc.,   R.   Co.  v.   Long  Island   L.  &   T. 
Co.  172  U.  S.  493,  43  L.  ed.  528.  19  Sup.  Ct.  Rep.  238;   Central  Nat.  Bank 
v.  Stevens,  171  U.  S.  109,  43  L.  ed.  97,  18  Sup.  Ct.  Rep.  837;   Cresent  City 
Live  Stock  Co.  v.   Butcher's  Union   Slaughter  House  Co.   120  U.   S.   141,   30 
L.  ed.  614.  7  Sup.  Ct.  Rep.  472;  Palmer  v.  Hussey,  119  U.  S.  96,  30  L.  ed.  362, 
7  Sup.  Ct.  Rep.  158. 

21  Embry  v.  Palmer,  107  U.  S.  3.  27  L.  ed.  346,  2  Sup.  Ct.  Rep.  25. 
!2  Scott  v.  Jones,  5  How.  343,  12  L.  ed.  181. 

23  Messenger  v.  Mason.  10  Wall.  507,  19  L.  ed.  1028;  Miners  Bank  v. 
Iowa,  12  How.  1,  13  L.  ed.  867. 


§    336  WRITS    OF    ERROR    TO    STATE    COURTS  209 

or  authority  must  have  been  drawn  in  question  upon  the  ground 
of  their  being  repugnant  to  the  Constitution,  laws,  or  treaties  of 
the  United  States.  When  no  such  ground  has  been  presented  to 
or  considered  by  the  courts  of  the  state,  it  cannot  be  said  that  those 
courts  have  disregarded  the  Constitution  of  the  United  States, 
and  the  Supreme  Court  has  no  jurisdiction.24  Whether  or  not  the 
Constitution  of  a  state  is  violated  by  state  law  is  not  within  the 
scope  of  this  clause.25  Xor  is  the  question  of  the  correct  construc- 
tion of  a  state  law,  when  its  validity  is  admitted.26  A  decision  in 
the  state  court  must  be  in  favor  of  the  validity  of  the  statute  of 
or  the  authority  exercised  under  the  statutes  drawn  in  question.27 
But  it  is  not  necessary  that  the  state  law  be  either  in  the  form  of 
a  statute  enacted  by  the  legislature  of  the  state  or  in  the  form  of 
a  Constitution  established  by  people  of  the  state;  a  by-law  or 
ordinance  of  a  municipal  corporation  may  be  such  an  exercise  of 
legislative  power  that  it  may  be  properly  considered  as  a  law  with- 
in the  meaning  of  this  clause  of  the  section.28 

24Scmkler  v.  Coler,  175  U.  S.  32.  44  L.  ed.  62,  20  Sup.  Ct.  Rep.  26; 
Columbus  Water  Power  Co.  v.  Columbia  Elec.  Street.  R.  R.  Co.  172  U.  S. 
475,  43  L.  ed.  521,  19  Sup.  Ct.  Rep.  247  (cases  therein  cited);  Miller  v. 
Cornwall  R.  Co.  168  U.  S.  131,  42  L.  ed.  409,  18  Sup.  Ct.  Rep.  34;  Levy  v. 
Supreme  Court,  167  U.  S.  175,  42  L.  ed.  126,  17  Sup.  Ct.  Rep.  769;  Adams 
v.  Preston,  22  How.  473,  16  L.  ed.  273;  Murdock  v.  Memphis,  20  Wall.  590, 
22  L.  ed.  429;  Michigan  Central  R.  R.  Co.  v.  Michigan  Southern  R.  R.  Co. 
]9  How.  378,  15  L.  ed.  689. 

25Calder  v.  Bull,  3  Dall.  386,  1  L.  ed.  648;  Jackson  v.  Lamphire,  3  Pet. 
280,  7  L.  ed.  679;  Withers  v.  Buckley,  20  How.  84,  15  L.  ed.  816;  Congdon 
Mining  Co.  v.  Goodman,  2  Black,  574,  17  L.  ed.  257;  Salomon's  v.  Graham, 
15  Wall.  208.  21  L.  ed.  37;  Leeper  v.  Texas,  139  U.  S.  462,  35  L.  ed.  225, 
11  Sup.  Ct.  Rep.  577;  Murray  v.  Louisiana,  163  U.  S.  101,  41  L.  ed.  87,  16 
Sup.  Ct.  Rep.  990;  East  Hartford  v.  Hartford  Bridge  Co.  10  How.  511,  13  L. 
ed.  518;  Baldwin  v.  Kansas,  129  U.  S.  52,  32  L.  ed.  640,  9  Sup.  Ct.  Rep. 
193;  Missouri  v.  Harris,  144  U.  S.  210,  36  L.  ed.  407,  12  Sup.  Ct.  Rep.  838; 
Sage  v.  Louisiana  Board  of  Liquidation,  144  U.  S.  647,  36  L.  ed.  577,  12  Sup. 
Ct.  Rep.  755;  Powell  v.  Brownsley  Co.  150  U.  S.  433,  37  L.  ed.  1134,  14 
Sup.  Ct.  Rep.  166;  In  re  Kemmler,  136  U.  S.  436,  34  L.  ed.  519,  10  Sup.  Ct. 
Rep.  930;  MoElvaine  v.  Brush,  142  U.  S.  155,  35  L.  ed.  971,  12  Sup.  Ct. 
Rep.  156. 

26  Congdon  Mining  Co.  v.  Goodman,  2  Black,  574,  17  L.  ed.  257 ;  Scott  v. 
Jones,  5  How.  343,  12  L.  ed.  181;  Lessiuer  v.  Price,  12  How.  59,  13  L.  ed. 
893;  Commercial  Bank  v.  Buckingham,  5  How.  317,  12  L.  ed.  169;  Smith  v. 
Hunter,  7  How.  738,  12  L.  ed.  894;  Grand  Gulf  R.  Co.  v.  Marshall,  12  How. 
165,  13  L.  ed.  938;  Ferry  v.  King  Co.  141  U.  S.  668,  35  L.  ed.  895,  12  Sup. 
Ct.  Rep.  128;  Snell  v.  Chicago,  152  U.  S.  191,  38  L.  ed.  408,  14  Sup.  Ct.  Rep. 
489. 

27McKinney  v.  Carroll,  12  Pet.  66,  9  L.  ed.  1002;  Commonwealth  Bank 
v.  Griffith,  14  Pet.  56,  10  L.  ed.  352;  Walker  v.  Taylor.  5  How.  64,  12 
L.  ed.  52. 

28  Bacon  v.  Texas,  163  U.  S.  207,  41  L.  ed.  132,  16  Sup.  Ct.  Rep.  1023; 
Montg.— 14. 


210        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  337 

§  337.  Decision  against  Right,  Title,  Privileges,  or  Immu- 
nity Claimed  under  United  States  Constitution,  Treaty,  Stat- 
ute, Authority,  or  Commission.  To  give  the  Supreme  Court 
jurisdiction  in  this  class  of  cases  the  right,  title,  or  immunity 
which  is  denied  by  the  decisions  of  the  state  court  must  grow  out 
of  the  Constitution  or  a  treaty  or  statute  of  the  United  States 
which  has  been  relied  upon.29 

The  title,  right,  privilege,  or  immunity  claimed  under  the 
Constitution  or  treaty  or  statute  of  or  commission  held  under  the 
United  States,  with  possibly  some  rare  exceptions,  must  be  special- 
ly set  up  or  claimed  in  the  court  below  in  order  to  vest  the  Supreme 
Court  with  jurisdiction.80  An  exception  to  this  rule  is  found  in 
a  case  where  the  validity  of  a  treaty  or  statute  of  the  United 
States  is  raised  and  a  decision  is  against  it,  or  where  the  validity 
of  a  state  statute  is  drawn  in  question  and  the  decision  is  in  favor 
of  its  validity.  In  such  cases  the  Federal  question  need  not  be 
specifically  set  up  if  it  appears  in  the  record,  was  decided  and  such 
decision  was  necessarily  involved  in  the  case  so  that  it  could  not 
have  been  determined  without  deciding  such  question.31 

New  Orleans  Water  Works  Co.  v.  Louisiana  Sugar  Refining  Co.  125  U.  S. 
18,  31  L.  ed.  607,  8  Sup.  Ct.  Rep.  741. 

29  Miller  v.  Lancaster  Bank,  106  U.  S.  542,  27  L.  ed.  289,  1  Sup.  Ct.  Rep. 
536;    Long  v.   Converse,   91   U.   S.   105,   23   L.   ed.   233;    Hale   v.   Gaines.   22 
How.  160,  16  L.  ed.  269;  Wynn  v.  Morris,  20  How.  5,  15  L.  ed.  800;  Henderson 
v.  Tennessee,  10  How.  323,  13  L.  ed.  439;  Verden  v.  Coleman,  1  Black,  472,  17 
L.  ed.   161;   Montgomery  v.  Hernandez,  12  Wheat.   129,  6  L.  ed.  575. 

30  Home   for   Incurables   v.   New   York,   187    U.   S.    155,   47    L.   ed.   117,   63 
L.R.A.   329,  23   Sup.  Ct.  Rep.   84;    Bollin  v.  Nebraska,   176  U.  S.  83,  44  L. 
ed.   382,   20   Sup.   Ct.   Rep.   287;    Telluride   Power   Transmission   Co.   v.   Rio 
Grande  Western  Railway  Co.  175  U.  S.  639,  44  L.  ed.  305,  20  Sup.  Ct.  Rep. 
245;    Columbia   Water  Power   Co.  v.   Columbia   Electric   Street   Railway   Co. 
172  U.  S.  475.  43  L.  ed.  521,  19  Sup.  Ct.  Rep.  247;   Levy  v.  Superior  Court 
167   U.   S.   175,   42   L.   ed.   126,   17    Sup.   Ct.   Rep.   769;    Oxley   Stave   Co.   v. 
Butler.  Co.   166  U.  S.  648,  41   L.  ed.   1149,   17  Sup.   Ct.   Rep.   709;    Chicago, 
etc.,  R.  Co.  v.  Chicago,  164  U.  S.  454,  41  L.  ed.  511,  17  Sup.  Ct.  Rep.  12°9; 
Powell  v.  Brunswick  Co.  150  U.  S.  433,  37  L.  ed.  1134,  14  Sup.  Ct.  Rep.  166; 
Roby  v.  Colehour,  146  U.  S.  153,  36  L.  ed.  922,  13  Sup.  Ct.  Rep.  47;  Leeper 
v.  Texas,   139   U.   S.  462,   35   L.  ed.  225,   11   Sup.  Ct.  Rep.  577;   Baldwin   v 
Kansas,    129   U.    S.   52.    32   L.   ed.   640.    9    Sup.   Ct.   Rep.    193;    Chappell   v. 
Bradshaw,    128   U.   S.    132,   32   L.   ed.    369,   9   Sup.   Ct.   Rep.   40;    French   v 
Hopkins,  124  U.  S.  524,  31  L.  ed.  536,  8  Sup.  Ct.  Rep.  589;  Spies  v.  Illinois 
123  U.  S.   131,  31  L.  ed.   80,  8  Sup.  Ct.  Rep.  21;    Armstrong  v.  Treasurer 
16   Pet.   281,   10  L.  ed.   5)65;    Missouri   R.   Co.   v.   Rock,   4   Wall.   177     18   L' 
ed.  381. 

81  Miller  v.  Nicholls,  4  Wheat.  311,  4  L.  ed.  578;  Willson  v.  Blackbird 
Creek  Marsh  Co.  2  Pet.  245,  7  L.  ed.  412;  Satterlee  v.  Mathewson,  2  Pet 
380,  7  L.  ed.  458;  Fisher  v.  Cockerell,  5  Pet.  248,  8  L.  ed.  114;  Crowell  v! 


§    337  WRITS    OF    ERROR    TO    STATE    COURTS  211 

Ordinarily,  however,  the  right,  title,  privilege,  or  immunity 
relied  upon  must  not  only  be  specially  set  up  or  claimed,  but  it 
must  be  so  claimed  or  set  up  at  the  proper  time  and  in  the  proper 
manner.32  The  question  must  be  raised  in  the  state  court  by  the 
individual  who  seeks  to  have  it  reviewed  in  the  Supreme  Court. 
The  fact  that  someone  else  has  raised  it  in  the  state  court  is  of 
no  avail  to  the  appellant  or  plaintiff  in  error,  if  he  himself  fail 
to  raise  it  in  the  court  below.33  Moreover  the  right,  title,  privilege, 
or  immunity  must  be  personal  to  the  appellant  or  plaintiff  in 
error.34  A  state  officer,  testing  the  constitutionality  of  a  state 
law  solely  in  the  interest  of  third  persons,  has  no  standing  to  re- 

Randell,  10  Pet.  368,  9  L.  ed.  458;  Harris  v.  Dennie,  3  Pet.  292,  7  L.  ed. 
683;  Farney  v.  Towle,  1  Black,  350,  17  L.  ed.  216;  Hoyt  v.  Shelden,  1  Black, 
518,  17  L.  ed.  65;  Missouri,  etc.,  R.  Co.  v.  Rock,  4  Wall.  177,  18  L.  ed. 
381;  Furman  v.  Nicnol,  8  Wall.  44,  19  L.  ed.  370;  Columbia  Water  Power 
Co.  v.  Columbia  Elec.  St.  R.  R.  Co.  172  U.  S.  475,  43  L.  ed.  521,  19  Sup. 
Ct.  Rep.  247 ;  Kaukauna  Water  Power  Co.  v.  Green  Bay,  etc.,  Canal  Co.  142 
U.  S.  254,  35  L.  ed.  1004,  12  Sup.  Ct.  Rep.  173;  Hickie  v.  Starke,  1  Pet.  94, 
7  L.  ed.  67;  Bridge  Prop.  v.  Hoboken  Land  Co.  1  Wall.  116,  17  L.  ed.  571; 
Yazoo,  etc.,  Co.  v.  Adams,  180  U.  S.  1,  45  L.  ed.  395,  21  Sup.  Ct.  Rep.  240; 
Telhiride  Power  Transmission  Co.  v.  Rio  Grande  Western  Railway  Co.  175 
U.  S.  639,  44  L.  ed.  305,  20  Sup.  Ct.  Rep.  245;  Green  Bay,  etc.,  Canal  Co. 
v.  Patten  Paper  Co.  172  U.  S.  58,  43  L.  ed.  364,  19  Sup.  Ct.  Rep.  97; 
Chicago,  etc.,  R.  R.  Co.  v.  Chicago,  166  U.  S.  226,  41  L.  ed.  979,  17  Sup. 
Ct.  Rep.  581;  Sayward  v.  Denny,  158  U.  S.  180,  39  L.  ed.  941,  15  Sup.  Ct. 
Rep.  777;  Powell  v.  Brunswick  County  150  U.  S.  440,  37  L.  ed.  1134,  14 
Sup.  Ct.  Rep.  166;  Davis  v.  Packard,  6  Pet.  41,  8  L.  ed.  312. 

32  Mutual  Life  Ins.  Co.  v.  McGrew,  188  U.  S.  292,  47  L.  ed.  480,  23  Sup. 
Ct.  Rep.  375,  66  L.R.A.  33;  Sayward  v.  Denney,  158  U.  S.  180,  39  L.  ed. 
941,  15  Sup.  Ct.  Rep.  777;  Morrison  v.  Watson,  154  U.  S.  Ill,  38  L.  ed. 
927,  14  Sup.  Ct.  Rep.  995;  Miller  v.  Texas,  153  U.  S.  535,  38  L.  ed.  81 '2, 
14  Sup.  Ct.  Rep.  874;  Maxwell  v.  Newbold,  18  How.  515,  15  L.  ed.  508; 
Hoyt  v.  Sheldon,  1  Black,  518,  17  L.  ed.  65. 

3'3I)eLamar's  Nevada  Gold  Mining  Co.  v.  Nesbitt,  177  U.  S.  523,  44  L.  ed. 
872,  20  Sup.  Ct.  Rep.  715;  Texas,  etc.,  R.  Co.  v.  Johnson.  151  U.  S.  81, 
38  L.  ed.  81,  14  Sup.  Ct.  Rep.  250;  Missouri  v.  Andriano,  138  U.  S.  496,  34 
L.  ed.  1012,  11  Sup.  Ct.  Rep.  385;  Linton  v.  Stanton.  12  How.  423,  13  L.  ed. 
1050;  Stradler  v.  Baldwin,  9  How.  261,  13  L.  ed.  130;  Manning  v.  French, 
133  U.  S.  186,  33  L.  ed.  582,  10  Sup.  Ct.  Rep.  258;  McNulta  v.  Lochridge, 
141  U.  S.  327,  35  L.  ed.  796,  12  Sup.  Ct.  Rep.  11;  Kizer  v.  Texarkana  R. 
R.  Co.  179  U.  S.  199,  45  L.  ed.  152,  21  Sup.  Ct.  Rep.  100;  Conde  v.  York, 
168  U.  S.  642,  42  L.  ed.  611,  18  Sup.  Ct.  Rep.  234;  Northern  P.  R.  Co.  v. 
Patterson,  ]54  U.  S.  130,  38  L.  ed.  934,  14  Sup.  Ct.  Rep.  977;  Ludeling  v. 
Chafl'e,  143  U.  S.  301,  36  L.  ed.  313,  12  Sup.  Ct.  Rep.  439;  Giles  v.  Little,  134 
U.  S.  645,  33  L.  ed.  1062,  10  Sup.  Ct.  Rep.  62.3;  Miller  v.  Lancaster  Bank. 
106  U.  S.  542,  27  L.  ed.  289,  1  Sup.  Ct.  Rep.  536;  Long  v.  Converse,  91  U.  S. 
105,  23  L.  ed.  233;  Owings  v.  Norwood,  5  Cranch,  344,  3  L.  ed.  120;  Montgom- 
ery v.  Hernandez,  12  Wheat.  129,  6  L.  ed.  575;  Hale  v.  Gaines,  22  How.  144, 
16  L.  ed.  264;  Verden  v.  Coleman,  1  Black,  472,  17  L.  ed.  161;  Sully  v.  Amer- 
ican National  Bank,  178  U.  S.  289,  44  L.  ed.  1072,  20  Sup.  Ct.  Rep.  935; 
Smith  v.  Indiana,  191  U.  S.  138,  48  L.  ed.  125,  24  Sup.  Ct.  Rep.  51. 

34  Ibid. 


212        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  337 

\  ii  \v  the  judgment,  even  though  a  judgment  for  costs  was  rendered 
against  him  personally.88  "The  proper  time  to  present  the  ques- 
tion is  in  the  trial  court  whenever  that  is  required  by  state  practice 
in  accordance  with  which  the  highest  court  of  a  state  will  not  re- 
vise the  judgment  of  the  court  below  on  questions  not  therein 
laised."  86  And  if  it  is  not  presented  before  decision  by  the  court 
of  last  resort  in  the  state,  it  then  becomes  too  late  to  present  it.87 
It  is  not  sufficient,  therefore,  to  make  the  claim  for  the  first  time 
in  the  petition  for  writ  of  error ;  88  or  in  a  petition  for  rehearing 
after  judgment,89  except  in  a  case  where  the  highest  state  court 

35  Smith  v.  Indiana,  191  U.  S.  138,  48  L.  ed.  125,  24  Sup.  Ct.  Rep.  51. 

36  Spies  v.  Illinois,  123  U.  S.  131,  31  L.  ed.  80,  8  Sup.  Ct.  Rep.  21;  see  also 
.I:u-obi  v.  Alabama,  187  U.  S.  133,  47  L.  ed.  106,  23  Sup.  Ct.  Rep.  48:  Layton 
> .  Missouri,  187  U.  S.  356,  47  L.  ed.  214,  23  Sup.  Ct.  Rep.  137:  Erie  R.  R.  Co. 
v.   Purdy,  185  U.  S.  148,  46  L.  ed.  847,  22  Sup.  Ct.  Rep.  005;   Mutual  Life 
Jns.  Co.'v.  McGrew,  188  U.  S.  308,  47  L.  ed.  480,  23  Sup.  Ct.  Rep.  375,  63 
L.R.A.  33;   Baldwin  v.  Kansas,  129  U.  S.  52,  32  L.  ed.  640,  9  Sup.  Ct.  Rep. 
1P3. 

STBollin  v.  Nebraska,  176  U.  S.  83,  44  L.  ed.  382,  20  Sup.  Ct.  Rep.  287; 
'  itizens  Sav's  Bank  v.  Owensboro,  173  U.  S.  636,  43  L.  ed.  840.  19  Sup.  Ct. 
Rep.  571;  Winona,  etc.,  Land  Co.  v.  Minnesota,  159  U.  S.  540,  40  L.  ed.  252. 

16  Sup.  Ct.  Rep.  88. 

38Sayward  v.  Denny,  158  U.  S.  180,  39  L.  ed.  941,  15  Sup.  Ct.  Rep.  777; 
Morrison  v.  Watson,  154  U.  S.  Ill,  38  L.  ed.  927,  14  Sup.  Ct.  Rep.  995;  Mil- 
ler v.  Texas,  153  U.  S.  535,  38  L.  ed.  812,  14  Sup.  Ct.  Rep.  874;  Duncan  v. 
Missouri,  152  U.  S.  377,  38  L.  ed.  485,  14  Sup.  Ct.  Rep.  570:  Powell  v.  Bruns- 
wick County,  150  U.  S.  433,  37  L.  ed.  1134,  14  Sup.  Ct.  Rep.  166:  Schuyler 
Nat.  Bank  v.  Bollong,  150  U.  S.  85,  37  L.  ed.  1008,  14  Sup.  Ct.  Rep.  24;  Loeber 
v.  Rchroeder,  149  U.  S.  580,  37  L.  ed.  856,  13  Sup.  Ct.  Rep.  934;  Brown  v. 
Massachusetts,  144  U.  S.  573,  36  L.  ed.  546,  12  Sup.  Ct.  Rep.  757;  Butler  v. 
Uijrc,  138  U.  S.  52,  34  L.  ed.  869,  11  Sup.  Ct.  Rep.  235;  Chappell  v.  Brad- 
shaw,  128  U.  S.  132,  32  L.  ed.  369,  9  Sup.  Ct.  Rep.  40;  Brooks  v.  Missouri, 
124  U.  S.  394,  31  L.  ed.  454,  8  Sup.  Ct.  Rep.  443;  Spies  v.  Illinois,  123  U.  S. 
131.  31  L.  ed.  80,  8  Sup.  Ct.  Rep.  21. 

39  Johnson  v.  New  York  L.  Ins.  Co.  187  U.  S.  496.  47  L.  ed.  273,  23  Sup. 
(  t.  Rep.  194;  Simmerman  v.  Nebraska,  116  U.  S.  54,  29  L.  ed.  535,  6  Sup. 
Ct.  Rep.  333;  Santa  Cruz  County  v.  Santa  Cruz  R.  Co.  Ill  U.  S.  361,  28  L. 
ed.  456,  4  Sup.  Ct.  Rep.  474:  Meyer  v.  Richmond,  172  U.  S.  82,  43  L.  ed. 
374,  19  Sup.  Ct.  Rep.  106;  Winona,  etc.,  R.  Co.  v.  Plainview,  143  U.  S.  371, 
36  L.  ed.  191,  12  Sup.  Ct.  Rep.  530;  Worthy  v.  Barrett,  9  Wall.  611,  19  L. 
i-d.  565;  Mutual  L.  Ins.  Co.  v.  McGrew,  188  U.  S.  291,  47  L.  ed.  480,  23  Sup. 
Ct.  Rep.  375,  63  L.R.A.  33;  Turner  v.  Richardson,  180  U.  S.  92,  45  L.  ed.  438,  21 
Sup.  Ct.  Rep.  295;  Capital  Nat.  Bank  v.  Cadiz  First  Nat.  Bank,  172  U.  S. 
425,  43  L.  ed.  502,  19  Sup.  Ct.  Rep.  202:  Meyer  v.  Richmond,  172  U.  S.  82,  43 
L.  ed.  374,  19  Sup.  Ct.  Rep.  106;  Miller  v.  Cornwall  R.  Co.  168  U.  S.  131,  42  L. 
ed.  409,  18  Sup.  Ct.  Rep.  34:  Zadig  v.  Baldwin,  166  U.  S.  488,  41  L.  ed.  1087 

17  Sup.  Ct.  Rep.  639;  Pirn  v.  St.  Louis,  165  U.  S.  273,  41  L.  ed.  714,  17  Sup. 
Ct.  Rep.  322;  Sayward  v.  Denny,  158  U.  S.  180,  39  L.  ed.  941,  15  Sup.  Ct.  Rep. 
777;  Loeber  v.  Schroeder,  149  U.  S.  580,  37  L.  ed.  856,  13  Sup.  Ct.  Rep.  934: 
Bushnell  v.  Crooke  Min.  etc.,  Co.  148  U.  S.  682,  37  L.  ed.  610,  13  Sup.  Ct. 
Rep.  771:  Winona,  etc.,  R.  Co.  v.  Plainview,  143  U.  S.  371,    36  L.  ed.  191,  12 
Sup.  Ct.  Rep.  530;  Leeper  v.  Texas,  139  U.  S.  462,  35  L.  ed.  225,  11   Sup.  Ct. 
Rep.  577:  Butler  v.  Gage,  138  U.  S.  52,  34  L.  ed.  869,  11   Sup.  Ct.  Rep.  235: 


§    337  WRITS    OF    ERROR    TO    STATE    COURTS  213 

has  entertained  a  petition  for  rehearing,  containing  Federal  ques- 
tions, and  has  decided  them.40 

The  proper  manner  in  which  to  raise  the  question  is  by  motion, 
exception,  pleading,  or  any  other  action  which  asserts  the  right, 
title,  privilege,  or  immunity  positively  and  unmistakably  upon 
the  record.41  ~No  particular  form  of  words  or  phrases  has  ever 
been  declared  necessary,  and  all  that  is  required  is  that  the  asser- 
tion of  the  rights  be  brought  clearly  to  the  attention  of  the  court.42 
But  the  fact  that  it  was  so  called  to  the  court's  attention  and  that 
it  was  decided  or  that  its  decision  was  necessary  to  the  judgment 
or  decree  rendered  in  the  case,  must  appear  upon  the  face  of  the 
record43  either  expressly  or  by  necessary  implication.44  In  this 

Texas  etc.,  R.  Co.  v.  Southern  Pac.  R.  Co.  137  U.  S.  48,  34  L.  ed.  614,  11 
Sup.  Ct.  Rep.  10;  Susquehanna  Boom  Co.  v.  West  Branch  Boom  Co.  110  U. 
S.  57,  28  L.  ed.  69,  3  Sup.  Ct.  Rep.  438. 

MMjillett  v.  North  Carolina,  181  U.  S.  589,  45  L.  ed.  1015,  21  Sup.  Ct.  Rep. 
730:  Mut.  Life  Ins.  Co.  v.  McGrew,  188  U.  S.  291,  47  L.  ed.  480,  23  Sup.  Ct. 
Rep.  375,  63  L.R.A.  33;  Leigh  v.  Green,  193  U.  S.  79,  48  L.  ed.  623,  24  Sup. 
Ct.  Rep.  390. 

«Axley  Stave  Co.  v.  Butter  Co.  166  U  S.  648,  41  L.  ed.  1149,  17  Sup.  Ct. 
Rep.  709 ;  Mut.  Life  Ins.  Co.  v.  McGrew,  188  U.  S.  291,  47  L.  ed.  480,  23  Sup. 
Ct.  Rep.  375,  63  L.R.A.  33;  Kipley  v.  Illinois,  170  U.  S.  182,  42  L.  ed.  998,  18 
Sup.  Cfc.  Rep.  550;  Levy  v.  Superior  Court,  167  U.  S.  175,  177,  42  L.  ed.  126, 
17  Sup.  Ct.  Rep.  769;  Dewey  v.  Des  Moines,  173  U.  S.  193,  43  L.  ed.  665,  19 
Sup.  Ct.  Rep.  379;  Bollin  v.  Nebraska,  176  U.  S.  83,  44  L.  ed.  382,  20  Sup.  Ct. 
Rep.  287;  Winona,  etc.,  Land  Co.  v.  Minnesota,  159  U.  S.  540,  40  L.  ed.  252, 
16  Sup.  Ct.  Rep.  88;  Michigan  Sugar  Co.  v.  Michigan,  185  U.  S.  112,  46  L. 
ed.  829,  22  Sup.  Ct.  Rep.  581;  New  York  Central  R.  R.  Co.  v.  New  York. 
186  U.  S.  269,  46  L.  ed.  1158,  22  Sup.  Ct.  Rep.  916;  Chapin  v.  Fye,  179 
U.  S.  127,  45  L.  ed.  119,  21  Sup.  Ct.  Rep.  71;  Delamars  Nev.  Mining  Co.  v. 
Nesbitt,  177  U.  S.  523,  44  L.  ed.  872,  20  Sup.  Ct.  Rep.  715;  Keokuk  Bridge 
Co.  v.  Illinois,  175  U.  S.  626,  44  L.  ed.  299,  20  Sup.  Ct.  Rep.  205;  Miller  v. 
Cornwall  R.  Co.  168  U.  S.  131,  42  L.  ed.  409,  18  Sup.  Ct.  Rep.  34;  Porter  v. 
Foley,  24  How.  415,  16  L.  ed.  740;  Maxwell  v.  Newbold,  18  How.  511,  15 
L.  ed.  506;  Lawler  v.  Walker,  14  How.  149,  14  L.  ed.  364;  Hoyt  v.  Sheldon,  1 
Black,  518,  17  L.  ed.  65;  Edwards  v.  Elliott,  21  Wall.  532,  22  L.  ed.  487;  Mes- 
senger v.  Mason,  10  Wall.  507,  19  L.  ed.  1028;  Erie  R.  R.  Co.  v.  Purdy,  185 
U.  S.  148,  46  L.  ed.  847,  22  Sup.  Ct.  Rep.  605. 

« Green  Bay,  etc.,  Canal  Co.  v.  Patten  Paper  Co.  172  U.  S.  58,  4.3  L.  ed 
364,  19  Sup.  Ct.  Rep.  97;  Carter  v.  Texas,  177  U.  S.  442,  44  L.  ed.  839,  20  Sup. 
Ct.  Rep.  687;  Erie  R.  R.  Co.  v.  Purdy,  185  U.  S.  148,  46  L.  ed.  847,  22  Sup. 
Ct.  Rep.  605. 

«  Citizens  Sav's  Bank  v.  Owensboro,  173  U.  S.  626,  43  L.  ed.  840,  19  Sup. 
Ct.  Rep.  530;  Dewey  v.  Des  Moines,  173  U.  S.  193.  43  L.  ed.  665,  19  Sup. 
Ct.  Rep.  379;  Capital  Nat.  Bank  v.  Cadiz  First  Nat.  Bank,  172  U.  S.  425. 
43  L.  ed.  502,  19  Sup.  Ct.  Rep.  202;  Green  Bay,  etc.,  Canal  Co.  v.  Patten 
Paper  Co.  172  U.  S.  58,  43  L.  ed.  364,  19  Sup.  Ct.  Rep.  97;  Kipley  v.  Illinois, 
170  I'.  S.  182.  42  L.  i<d.  998,  18  Sup.  Ct.  Rep.  550;  Miller  v.  Cornwall  R.  Co. 
168  U.  S.  131,  42  L.  ed.  409,  18  Sup.  Ct.  Rep.  34;  Louisville,  etc.,  R.  Co.  v. 
Louisville,  166  \J.  S.  709,  41  L.  ed.  1173,  17  Sup.  Ct.  Rep.  725;  Dibble  v. 
Bcllinsrham  Bay  Land  Co.  163  U.  S.  63,  41  L.  ed.  72,  16  Sup.  Ct.  Rep.  iKi!) ; 


214        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  337 

connection,  note  that  a  certificate  of  a  chief  justice  of  the  highest 
court  of  a  state,  that  certain  Federal  questions  were  presented 
and  passed  upon,  is  not  a  part  of  the  record,  its  office  being  merely 
to  make  more  certain  that  which  is  too  indefinite  in  the  record, 
and  it  is  insufficient,  in  itself,  to  give  the  Supreme  Court  juris- 
diction.46 

To  authorize  a  review  of  this  class  of  cases  as  of  the  preceding 

Chemical  Nat.  Bank  v.  City  Bank,  160  U.  S.  646,  40  L.  ed.  568,  16  Sup.  Ct. 
Rep.  417;  Winona  Land  Company  v.  Minnesota,  159  U.  S.  540,  40  L.  ed. 
•2~>-2,  16  Sup.  Ct.  Rep.  88;  Goodenough  Horseshoe  Mfg.  Co.  v.  Rhode  I.  Horse- 
shoe Co.  154  U.  S.  635,  24  L.  ed.  368,  14  Sup.  Ct.  Rep.  1180;  Gray  v.  Coan, 
154  U.  S.  589,  38  L.  ed.  1088,  14  Sup.  Ct.  Rep.  1168;  Morrison  v.  Watson,  154 
U.  S.  Ill,  38  L.  ed.  927,  14  Sup.  Ct.  Rep.  995;  Miller  v.  Texas,  153  U.  S.  535, 
38  L.  ed.  812,  14  Sup.  Ct.  Rep.  874;  Marsh  v.  Nichols,  140  U.  S.  344,  35  L. 
ed.  413,  11  Sup.  Ct.  Rep.  798;  Murray  v.  Charlestown,  96  U.  S.  432,  24  L. 
ed.  760;  Wolf  v.  Stix,  96  U.  S.  451,  24  L.  ed.  640;  Suydam  v.  Williamson, 
20  How.  427,  15  L.  ed.  978;  Christ  Church  v.  Phil.  Co.  20  How.  26,  15  L.  ed. 
802 ;  Carter  v.  Bennett,  15  How.  354,  14  L.  ed.  727 ;  Ocean  Ins.  Co.  v.  Polleys, 
13  Pet.  157,  10  L.  ed.  105;  Crowell  v.  Randall,  10  Pet.  368,  9  L.  ed.  458; 
Davis  v.  Parkard,  7  Pet.  276,  8  L.  ed.  684;  Satterlee  v.  Matthewson,  2  Pet. 
380,  7  L.  ed.  458:  Miller  v.  Nichols,  4  Wheat.  311,  4  L.  ed.  578:  The  Victory, 

6  Wall.  382,  18  L.  ed.  848;   Sayward  v.  Denny,  158  U.  S.  180,  39  L.  ed.  941, 
15  Sup.  Ct.  Rep.  777;    Choteau  v.  Marguerite,  12  Pet.  507,  9   L.  ed.   1174; 
Coons  v.  Gallaher,  15  Pet.  18,  10  L.  ed.  645;   Commercial  Bank  v.  Bucking- 
ham,  5   How.  317,   12   L.  ed.   169;    Grand   Gulf   R.,  etc.  Co,  v.   Marshall.   12 
How.  165,  13  L.  ed.  938;   Maxwell  v.  Newbold,  18  How.  511,  15  L.  cd.  506; 
Hoyt  v.  Sheldon.  1  Black,  518.  17  L.  ed.  65;  Taylor  v.  Morton,  2  Black,  481, 
17  L.  ed.  277;   Gibson  v.  Chouteau,  8  Wall.  314,  19  L.  ed.  317;    Cockroft  v. 
Vose,  14  Wall.  5,  20  L.  ed.  875;   Detroit  City  R.  Co.  v.  Guthard,  114  U.  S. 
133,    29    L.    ed.    118,    5    Sup.    Ct.    Rep.    811;    Kansas    Endowment    Ass'n    v. 
Kansas,  120  U.  S.  103,  30  L.  ed.  593,  7  Sup.  Ct.  Rep.  499;  Nauer  v.  Thomas, 
13    Allen    (Mass.)    572;    Inglee   v.    Coolidge,    2    Wheat.    363,    4   L.    ed.    261; 
Fisher   v.   Cockerell,   5   Pet.   248,   8   L.   ed.   114;    Crawford   v.   Branch    Bank, 

7  How.  279,  12  L.  ed.  700:   Attorney  Gen.  v.  Federal  Street  Meeting  House, 
1  Black,  262,  17  L.  ed.  61;  Parmelee  v.  Lawrence.  11  Wall.  36,  20  L.  ed.  48; 
Brooks   v.   Missouri,   124   U.   S.   394,    31    L.   ed.   454,   8    Sup.   Ct.   Rep.   443; 
Powell  v.   Brunswick   Co.   150  U.  S.   433,   37   L.  ed.   1134,   14   Sup    Ct.   Rep. 
166;  Ansbro  v.  United  States,  159  U.  S.  695,  40  L.  ed.  310.  16  Sup.  Ct.  Rep. 
187;   Murdock  v.  Memphis,  20  Wall.  636.  22  L.  ed.  444;   Ware  v.  Galveston 
City  Co.  Ill  U.  S.  170,  28  L.  ed.  393,  4  Sup.  Ct.  Rep.  337. 

44  Craig  v.  Missouri,  4  Pet.  410,  7  L.  ed.  903;  Powell  v.  Brunswick  Co 
150  U.  S.  433,  37  L.  ed.  1134,  14  Sup.  Ct.  Rep.  166;  Sayward  v.  Denny 
158  U.  S.  180,  39  L.  ed.  941,  15  Sup.  Ct.  Rep.  777. 

«Home  for  Incurables  v.  New  York,  187  U.  S.  155,  47  L.  ed.  117  23  Sup 
Ct.  Rep.  155,  63  L.R.A.  329;  Yazoo,  etc..  R.  R.  Co.  v.  Adams,  180  U.  S.  41^ 
45  L.  ed.  415,  21  Sup.  Ct.  Rep.  256;  Henkel  v.  Cincinnati,  177  U.  S.  170* 
44  L.  ed.  720,  20  Sup.  Ct.  Rep.  573:  Dibble  v.  Bellingham  Bav  Land  Co' 
163  U.  S.  63,  41  L.  ed.  72,  16  Sup.  Ct.  Rep.  939;  Sayward  v.  'Denny  158 
U.  S.  180,  39  L.  ed.  941,  15  Sup.  Ct.  Rep.  777;  Newport  Light  Company 
v.  Newport,  151  U.  S.  527,  38  L.  ed.  259,  14  Sup.  Ct.  Rep.  429-  Powell  v 
Brunswick  Co.  150  U.  S.  433,  37  L.  ed.  1134,  14  Sup.  Ct.  Rep.  166-  Roby 
v.  Colehour,  146  U.  S.  153,  36  L.  ed.  922,  13  Sup.  Ct.  Rep.  47;  Felix  v. 
Scharnweber,  125  U.  S.  54,  31  L.  ed.  687.  8  Sup.  Ct.  Rep.  759-  Caperton  v 
Bowyer,  14  Wall  216,  20  L.  ed.  882;  Lawler  v.  Walker,  14  How  149* 


§    338  WEITS    OF    ERROR    TO    STATE    COURTS  215 

classes,  the  decision  must  be  adverse  to  a  title,  right,  privilege,  or 
immunity  claimed  by  the  plaintiff  in  error.46 

§  338.  General  Propositions  Flowing  from  §  237,  Judicial 
Code.  Having  discussed  each  of  the  three  classes  of  cases  review- 
able  by  writ  of  error  under  §  237,  Judicial  Code,  there  still  remain 
certain  general  rules  or  propositions  applicable  to  the  section  as 
a  whole,  which  are  briefly  as  follows : 

1.  It  is  not  necessary  that  any  particular  amount  of  money  be 
involved  in  order  to, entitle  the  plaintiff  in  error  to  a  review.47 

2.  The  section  applies  alike  to  criminal  and  civil  cases  either 
in  law  or  in  equity.48 

3.  Federal  question  must  be  real,  not  fictitious ;  that  is,  there 
must  be  some  ground  for  the  averment  of  the  question.49 

4.  Questions  of  fact  cannot  be  reviewed  by  the  Supreme  Court, 
but  must  be  taken  as  found.50 

14  L.  ed.  364;   Parmalee  v.  Lawrence,  11  Wall.  36,  20  L.  ed.  48;  Messenger 
v.  Mason,  10  Wall.  507,  19  L.  ed.  1028. 

«Delamar's  Nev.  Gold  Mining  Co.  v.  Nesbitt,  177  U.  S.  523,  44  L.  ed. 
872,  20  Sup.  Ct.  Rep.  715;  Rae  v.  Homestead  Loan,  etc.,  Co.  176  U.  S. 
121,  44  L.  ed.  398,  20  Sup.  Ct.  Rep.  341;  Abbott  v.  Tacoma  Bank  of  Com- 
merce, 175  U.  S.  409,  44  L.  ed.  217,  20  Sup.  Ct.  Rep.  153;  Jersey 
City,  etc.,  Power  Co.  v.  Morgan,  160  U.  S.  288,  40  L.  ed.  430,  16 
Sup.  Ct.  Rep.  276;  Saywara  v.  Denny,  158  U.  S.  180,  39  L.  ed.  941, 

15  Sup.   Ct.   Rep.   777;    Dower   v.   Richards,    151    U.   S.   658,   38   L.   ed.   305, 
14    Sup.    Ct.    Rep.    452,    17    Mor.    Min.    Rep.    704;    Tyler    v.    Cass    Co.    142 
U.  S.  288,  35  L.  ed.   1016,   12   Sup.  Ct.   Rep.  225;    Gordon  v.   Caldcleugh,   3 
Cranch,  268,  2  L.  ed.  436;   Buel  v.  Van  Ness,  8  Wheat.  312,  5  L.  ed.  624; 
Fulton  v.  McAffee,  16  Pet.  149,  10  L.  ed.  918;  Ocean  Ins.  Co.  v.  Polleys,  13 
Pet.   157,   10   L.  ed.   105 ;    Ross  v.   Doe,   1   Pet.   655,   7   L.   ed.   302 ;    Hale  v. 
Gaines,  22  How.  144,   16  L.  ed.  264;   Nelson  v.  Moloney,   174  U.  S.   164,   43 
L.  ed.  934,  19  Sup.  Ct.  Rep.  622;   Missouri  Pacific  Railway  Co.  v.  Fitzgerald, 
160  U.  S.  556,  40  L.  ed.  536,  16  Sup.  Ct.  Rep.  389. 

*'  Weston  v.  Charlestown,  2  Pet.  449,  7  L.  ed.  481 ;  Holmes  v.  Jennison, 
14  Pot.  540,  10  L.  ed.  579;  The  Habana,  175  U.  S.  682,  44  L.  ed.  320,  20 
Sup.  Ct.  Rep.  290.  As  to  amount  and  value  as  an  element  of  Supreme 
Court's  appellate  jurisdiction  and  history  of  changes  therein,  see  Kirbv  v. 
America  Soda  Fountain  Co.  194  U.  S.*  144,  48  L.  ed.  911,  24  Sup."  Ct. 
Rep.  619. 

«  Cohens  v.  Virginia,  6  Wheat.  264,  6  L.  ed.  257;  Verden  v.  Coleman,  22 
How.  192,  16  L.  ed.  336;  Dower  v.  Richards,  151  U.  S.  658,  38  L.  ed.  305, 
14  Sup.  Ct.  Rep.  452,  17  Mor.  Min.  Rep.  704. 

«Hamblin  v.  Western  Land  Company,  147  U.  S.  531,  37  L.  ed.  267,  13 
Sup.  Ct.  Rep.  353.  See  also  Millingar  v.  Hartupee,  6  Wall.  258,  8  L.  ed. 
829:  New  Orleans  v.  New  Orleans  Water  Works  Co.  142  U.  S.  79,  35  L. 
ed.  943,  12  Sup.  Ct.  Rep.  142;  Wilson  v.  North  Carolina,  169  U.  S.  586,  42 
L.  ed.  865.  18  Sup.  Ct.  Rep.  435;  St.  Louis,  etc.,  R.  Co.  v.  Missouri,  156 
U.  S.  478,  39  L.  ed.  502,  15  Sup.  Ct.  Rep.  443. 

50Hedrick  v.  Atchison.  etc.,  R.  Co.  167  U.  S.  673,  42  L.  ed.  320,  17  Sup. 


21G        MONTGOMERY'S  MANUAL  OF  FEDERAL,  PROCEDURE      §  338 

5.  "If  it  appears  that  the  judgment  of  the  state  court  was 
correct,  the  jurisdiction  does  not  attach  regardless  of  the  presence 
of  a  Federal  question." 61 

The  Supreme  Court  has  summarized  most  of  the  essential  con- 
ditions necessary  to  its  jurisdiction  to  review  decisions  of  state 
courts  under  this  section,  in  the  early  case  of  Murdock  v.  Mem- 
phis, 20  Wallace,  635,  where  Miller,  J.,  says  in  the  opinion: 

"We  hold  the  following  propositions  on  this  subject  as  flowing 
from  the  statute  as  it  now  stands: 

"That  it  is  essential  to  the  jurisdiction  of  this  court  over  the 
judgment  of  a  state  court  that  it  shall  appear  that  one  of  the 
questions  mentioned  in  the  act  (now  §  237,  Judicial  Code)  must 
have  been  raised  and  presented  to  the  state  court. 

"That  it  must  have  been  decided  by  the  state  court,  or  that 
its  decision  was  necessary  to  the  judgment  or  decree  rendered  in 
the  case. 

"That  the  decision  must  have  been  against  the  right,  claimed 
or  asserted  by  the  plaintiff  in  error  under  the  Constitution, 
treaties,  laws,  or  authority  of  the  United  States. 

"These  things  appearing,  this  court  has  jurisdiction  and  must 
examine  the  judgment  so  far  as  to  enable  it  to  decide  whether  this 
claim  of  right  was  correctly  adjudicated  by  the  state  court. 

"If  it  finds  that  it  was  rightly  decided,  the  judgment  must  be 
affirmed. 

"If  it  was  erroneously  decided  against  a  plaintiff  in  error  (or 
appellant)  then  this  court  must  further  inquire  whether  there  is 
any  other  matter  or  issue  adjudged  by  the  state  court,  which  is 
sufficiently  broad  to  maintain  the  judgment  of  that  court,  not- 
withstanding the  error  in  deciding  the  issue  raised  by  the  Federal 
question.  If  this  is  found  to  be  the  case,  the  judgment  must  be 

Ct.  Rep.  922;  Atchison,  etc.,  R.  Co.  v.  Matthews,  174  U.  S.  96,  43  L.  ed.  909, 
19  Sup.  Ct.  Rep.  609;  Backus  v.  Fort  St.  Union  Depot  Co.  169  U.  S.  557, 
42  L.  ed.  853,  18  Sup.  Ct.  Rep.  445;  Egan  v.  Hart,  165  U.  S.  188,  41  L. 
ed.  680,  17  Sup.  Ct.  Rep.  300;  In  re  Buchanan,  158  U.  S.  31,  39  L.  ed.  884, 
15  Sup.  Ct.  Rep.  723;  Chicago,  etc.,  R.  Co.  v.  Chicago,  166  U.  S.  226,  41  L.  ed. 
979,  17  Sup.  Ct.  Rep.  581;  Missouri,  etc.,  R.  Co.  v.  Haber,  169  U.  S.  613 
42  L.  ed.  878.  18  Sup.  Ct.  Rep.  488. 

51  Hammond  v.  Johnson.  142  U.  S.  78,  35  L.  ed.  941,  12  Sup.  Ct.  Rep.  141. 


§    339  WRITS    OF    ERROR    TO    STATE    COURTS  217 

affirmed  without  inquiring  into  the  soundness  of  the  decision  on 
such  other  matter  or  issue. 

"But  if  it  be  found  that  the  issue  raised  by  the  question  of 
Federal  law  is  of  such  controlling  character  that  its  correct  de- 
cision is  necessary  to  any  final  judgment  in  the  case,  or  that 
there  has  been  no  decision  by  the  state  court  of  any  other  matter 
or  issue  which  is  sufficient  to  maintain  the  judgment  of  that 
court,  without  regard  to  the  Federal  question,  then  this  court  will 
reverse  the  judgment  of  the  state  court,  and  will  either  render 
such  judgment  here  as  the  state  court  should  have  rendered,  or 
remand  the  case  to  that  court  as  the  circumstances  of  the  cas; 
may  require." 

It  is  to  be  noted  that  it  is  only  in  case  of  the  state  court's 
decision  being  adverse  to  the  powers  exercised  by  the  United 
States  that  the  review  by  the  Supreme  Court  is  provided  for. 
Thus  it  is  apparent  that  it  is  the  purpose  of  this  section  not  to 
correct  errors  in  the  state  courts,  for  if  the  Federal  authority  is 
not  denied  no  review  is  allowed,  but  only  as  a  check  upon  uncon- 
stitutional legislation  by  the  state  courts.52 

§  339.  Procedure  on  Removal  from  State  Courts  of  Last 
Resort. 

§  1 003,  R.  8.,  Comp.  St.  1901,  p.  713,  4  F.  8.  A.  616. 
"Writs  of  error  from  the  Supreme  Court  to  a  state  court  in 
cases  authorized  by  law  shall  be  issued  in  the  same  manner 
and  under  the  same  regulations,  and  shall  have  the  same 
effect,  as  if  the  judgment  or  decree  complained  of  had  been 
rendered  or  passed  in  a  court  of  the  United  States." 

Thus,  it  is  seen  that  the  procedure  on  removal  of  causes  from 
state  courts  is  identical  with  that  upon  writ  of  error  from  the 
United  States  court,  the  discussion  of  which  is  found  in  chapter 
28. 

From  the  nature  of  the  proceeding,  however,  the  forms  to  be 

52Simkin's  Fed.  Eq.  Suit  (2d  ed.)  p.  771;  Remington  Paper  Co.  v.  Watkins, 
173  U.  S.  451,  43  L.  ed.  762,  19  Sup.  Ct.  Rep.  456;  Central  Land  Co.  v. 
Laidley,  159  U.  S.  103,  40  L.  ed.  91,  16  Sup.  Ct.  Rep.  80. 


218        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      ?. 

used  will  differ  from  those  suggested  there.     The  following  are 
suggested  as  guides : 


PETITION  FOB  WRIT  OF  EREOB. 

To  the   Honorable    Chief  Justice  of  the  Supreme  Court  of  the 

United  States  and  to  the  Associate  Justices  of  the  Court: 

,  the  plaintiff  in  the  above-entitled  cause,  shows  by  this  petition 

to  this  Honorable  Court,   that   in  the  records,   proceedings  and  decisions   in 

the   court  of  the  State  of ,  the  same  being  the  highest 

court  of  said  State  in  which  a  decision  could  be  had  in  this  suit,  a  manifest 
error  has  occurred,  greatly  to  the  damage  of  said  

That,  as  appears  in  the  record  and  proceedings  there  was  drawn  in  question 
(here  state  the  Federal  question  particularly  involved);  all  of  which  fully 
appears  in  the  records  and  proceedings  of  the  case  and  is  specifically  set 
forth  in  the  assignment  of  errors  filed  herewith. 

WHEREFORE  petitioner  prays  that  a  writ  of  error  be  allowed,  and  that 
a  transcript  of  record,  proceedings  and  papers  upon  which  said  decree  was 
rendered,  duly  authenticated,  be  ordered  sent  to  the  Supreme  Court  of  tne 
United  States  at  Washington,  D.  C.,  under  the  rules  of  such  court  in  such 
cases  made  and  provided,  and  that  the  same  may  be  by  this  Honorable  Court 
inspected  and  corrected  in  accordance  with  law  and  justice. 

Signed , 

Solicitor. 

WRIT-  OF  ERROR. 

The  President  of  the  United  States  to  the  Honorable  Judges  of  the  Supreme 
Court  of  the  State  of ,  Greeting: 

Whereas  in  the  record  and  proceeding  and  in  the  rendition  of  the  judgment 
of  the  above  entitled  cause  which  is  now  before  you  or  some  of  you  be- 
tween   ,  plaintiff,  and  ,  defendant,  your  court  being  tiie 

highest  court  of  said  state  having  jurisdiction  of  the  cause,  there  was  drawn 
in  question  (here  state  the  Federal  question  involved)  and  the  decision  was 
against  the  validity,  etc.,  (or  in  favor  of  the  validity,  etc.,  as  the  case  may 
be)  and  whereas  there  is  manifest  error  in  said  decision  to  the  damage  of 

the  petitioner  in  error,  and  whereas  we  are  willing  that  if  there 

is  error  it  should  be  duly  corrected,  we  command  you  therefore,  if  judgment 
In-  given  therein,  that  you  send  under  seal  of  your  court,  the  record  and 
proceedings  in  said  cause  to  the  Supreme  Court  of  the  United  States  to- 
gether with  this  writ,  within  such  time  as  may  be  necessary  in  order  that 
you  have  the  same  at  Washington  on  the  ....  day  of  ,  19. .,  that 


§    339  WKITS    OF    ERKOE    TO    STATE    COURTS  219 

the  record  may  be  then  inspected  by  the  Supreme  Court  of  the  United  States 
to  be  then  and  there  held  in  order  that  justice  may  be  done. 

Witness  the  Honorable   Chief  Justice  of  the  Supreme  Court 

that day  of ,  A.  D.  191... 

Seal  , 

Clerk  of  the  Supreme  Court 

of  the  United  States. 

The  allowance  of  the  writ  may  be  indorsed  upon  it  as  follows:      Allowed 

upon   giving  bond  in  the  sum  of   Dollars  according  to 

law. 


Justice  of  the  Supreme  Court  of 

the  United  States. 


Or  a  separate  order  of  allowance  may  be  made  in  substantially 
the  following  form: 


IN  THE  SUPREME  COURT  OF  THE  UNITED  STATES TERM, 

,  191... 

A.   B.  1 

v.      i  ORDER  OF  ALLOWANCE  OF  WRIT  OF  ERROR. 

C.  D.  J 

On  this  ....  day  of  19. .,  the  application  of  A.  B.,  plaintiff  in 

this  action  for  a  writ  of  error,  came  on  to  be  heard,  said  plaintiff  being  repre- 
sented by  counsel  and  it  appearing  to  the  Court  from  the  petition  filed  herein 
and  from  the  record  filed  therewith,  that  his  application  should  be  granted, 
and  that  a  transcript  of  the  record  proceedings  and  papers,  upon  which  the 
judgment  of  the  court  was  rendered  properly  certified,  should  be  sent  to 
the  Supreme  Court  of  the  United  States,  as  prayed,  in  order  that  such  pro- 
ceedings may  be  had  as  may  be  just. 

NOW,  THEREFORE  IT  IS  ORDERED  that  the  writ  of  error  be  allowed 
upon  bond  being  furnished  by  the  plaintiff  conditioned  according  to  law  in 

the  sum  of  $ (if  it  is  desired  that  this  act  as  a  supersedeas,  insert 

that  provision  here)  and  that  a  true  copy  of  the  record,  assignment  of  errors 

and  all  proceedings  in  the  case  in  the court  of  shall  be 

transmitted  to  the  Supreme  Court  of  the  United  States,  duly  certified  accord- 
ing to  law,  in  order  that  said  Court  may  inspect  the  same  and  take  such 
action  thereon  as  it  deems  proper  according  to  law. 

For  the  bond,  citation,  assignment  of  errors,  and  other  papers, 
the  forms  given  in  chapter  41  may  be  used,  the  proper  title  of 
court  and  judge  or  justice  being  inserted. 


CHAPTER  12. 


SUMMARIES— JURISDICTION,  AMOUNT  AND  VENUE  FOR  THE 
SEVERAL  MATTERS  OF  DISTRICT  COURT  COGNIZANCE. 


Sec. 

350.  General   Statement. 

351.  Civil  Suits  by  United  States  or  Its  Officers. 

352.  Land  Grants  of  States. 

353.  Arising  under  the   Constitution. 

354.  Arising  under  the  Laws  of  the   United   States. 

355.  Arising  under  Treaties. 

356.  Between  Citizens  of  Different  States. 

357.  Between  Citizens  of  a  State  and  Foreign  States. 

358.  Between  Citizens  of  a  State  and  Foreign  Citizens  or  Subjects. 

359.  Crimes  and  Offenses. 

360.  Admiralty  and  Maritime  Jurisdiction. 

361.  Slave  Trade. 

362.  Revenue  Laws. 

363.  Postal  Laws. 

364.  Patent — Copyright — Trademark  Laws. 

365.  Commerce  Laws. 

366.  Penalties  and  Forfeitures. 

367.  Seizures  for  Forfeitures  on  High  Seas. 

368.  Suits  by  Assignee  of  Debenture  for  Drawback  for  Duties. 

369.  Protection  of  Acts  under  United  States  Revenue  Laws  and  to  Enforce 

the  Right  to  Vote. 

370.  Civil  Rights  Cases. 

371.  Suits  to  Recover  Possession  of  an  Office. 

372.  Suits  under  Provisions  Title  "National  Banks." 

373.  By  Aliens  for  Torts. 

374.  Against  Consuls. 

375.  Bankruptcy. 

376.  Claims  against  the  United  States. 

377.  Unlawful  Inclosure  Public  Lands. 

378.  Immigration  and  Contract  Labor  Laws. 

379.  Trade  Restraints  and  Monopolies. 

380.  Indian  Land  Allotment. 

381.  Partition  Suits.    United  States  a  Party. 

220 


§    351     DISTRICT    COURTS JURISDICTION,    AMOUNT,    VENUE         221 

§  350.  General  Statement.  Questions  as  to  whether  a  par- 
ticular matter  may  be  brought  originally  in  the  United  States 
district  court,  or  if  brought  in  the  state  court  whether  it  may  be 
removed  to  the  Federal  district  court,  and  as  to  the  amount 
required  to  be  in  controversy  to  give  the  Federal  courts  jurisdic- 
tion and  the  proper  venue  of  the  action,  generally  come  up 
together  at  the  very  outset  of  the  action. 

The  purpose  of  this  chapter  is  to  summarize  under  the  various 
jurisdictional  heads  of  district  court  cognizance  the  statutory  pro- 
visions or  requirements  as  to  jurisdiction,  original  and  exclusive 
or  original  and  on  removal,  together  with  the  amount  required 
to  be  in  controversy  and  venue  in  each  case. 

§  351.  Civil  Suits  by  United  States  or  Its  Officers. 

Original. 

Pt.  Subd.  First,  §  24,  Judicial  Code?  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  185, 1912  Supp.  F.  S.  A.  v.  1,  p.  138.  "Of 
all  suits  of  a  civil  nature,  at  common  law  or  equity,  brought 
by  the  United  States  or  by  any  officer  thereof  authorized  to 
sue.  .  .  ." 

Removal. 

Pt.  §  28,  Judicial  Code?  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  pp.  140, 141,  1912  Supp.  F.  S.  A.  v.  1,  p.  146.  ".  .  . 
any  other  suit  of  a  civil  nature,  at  law  or  in  equity,  of  which 
the  district  courts  of  the  United  States  are  given  jurisdiction 
by  this  title,  and  which  are  now  pending  or  may  hereafter  be 
brought  in  any  state  court,  may  be  removed  into  the  district 
court  of  the  United  States  for  the  proper  district  by  the  de- 
fendant or  defendants  therein,  being  nonresidents  of  that 
state." 

Amount. 

Not  material  under  §  24,  Judicial  Code.0 

Venue. 

In  the  district  whereof  defendant  is  an  inhabitant,  under  §  51, 

a  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  b,  ante,  our  §  104. 
*  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  c,  ante,  our  §  22]. 
«  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *,  ante,  our  §  194. 


222        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  352 

Judicial  Code,  unless  there  are  several  defendants  residing  in 
different  districts  in  the  same  state  or  different  divisions  in  the 
same  district,  when  the  action  will  be  in  any  such  district  or 
division  under  §§  52,  53,  Judicial  Code,  and  except  in  local  ac- 
tions, §§  54,  55,  57,  Judicial  Code. 

§  352.  Land  Grants  of  States. 
Original. 

PL  Subd.  First,  §  24,  Judicial  Code?  36  Stat.  at  L.  1091, 

Comp.  St.  1911,  p.  185,  1912  Supp.  F.  S.  A.  v.  1.  p.  138. 

"Of  all  suits  of  a  civil  nature,  at  common  law  or  in  equity 

between  citizens  of  the  same  state  claiming  land 

grants  from  different  states    .    .    ." 

Removal. 

§  30,  Judicial  Code*  36  Stat.  at  L.  1096,  Comp.  St.  1911, 
p.  142,  1912  Supp.  F.  S.  A.  v.  1,  p.  146.  "If  in  any 
action  commenced  in  a  state  court  the  title  of  land  be  con- 
cerned, and  the  parties  are  citizens  of  the  same  state  and 
the  matter  in  dispute  exceeds  the  sum  or  value  of  three 
thousand  dollars,  exclusive  of  interest  and. costs,  the  sum  or 
value  being  made  to  appear,  one  or  more  of  the  plaintiffs  or 
defendants,  before  the  trial,  may  state  to  the  court,  and  make 
affidavit  if  the  court  require  it,  that  he  or  they  claim,  and 
shall  rely  upon,  a  right  or  title  to  the  land  under  a  grant 
from  a  state,  and  produce  the  original  grant,  or  an  exempli- 
fication of  it,  except  where  the  loss  of  public  records  shall  put 
it  out  of  his  or  their  power,  and  shall  move  that  any  one  or 
more  of  the  adverse  party  inform  the  court  whether  he  or 
they  claim  a  right  or  title  to  the  land  under  a  grant  from 
some  other  state,  the  party  or  parties  so  required  shall  give 
such  information,  or  otherwise  not  be  allowed  to  plead  such 
grant  or  give  it  in  evidence  upon  the  trial.  If  he  or  they 
inform  the  court  that  he  or  they  do  claim  under  such  grant, 
any  one  or  more  of  the  party  moving  for  such  information 
may  then,  on  petition  and  bond,  as  hereinbefore  mentioned 
in  this  chapter,  remove  the  cause  for  trial  to  the  district 
court  of  the  United  States  next  to  be  holden  in  such  district ; 
and  any  one  of  either  party  removing  the  cause  shall  not  be 
allowed  to  plead  or  give  evidence  of  any  other  title  than  that 

d  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»,  ante,  our  §  194. 
e  For  Annotation  of  this  §  30,  Judicial  Code,  see  footnote  «,  ante,  our  §  262. 


§    353     DISTRICT    COUKTS JURISDICTION,    AMOUNT,    VENUE          223 

by  him  or  them  stated  as  aforesaid  as  the  ground  of  his  or 
their  claim." 

Amount. 

Immaterial  under  §  24,  Judicial  Code,  where  the  suit  is  origi- 
nally brought  in  the  Federal  court,  but  otherwise  under  §  30, 
Judicial  Code,  last  above  quoted,  where  it  is  brought  in  the  state 
court  and  sought  to  be  removed  to  the  Federal  court. 

Venue  of  the  action  would  be  the  district  in  which  the  land 
lies  and  if  in  two  districts  may  be  brought  in  either  district, 
under  §  55,  Judicial  Code,  and  if  the  defendant  resides  in  a 
different  district  in  the  same  state,  the  process  may  be  directed 
against  him  there  under  §  54,  Judicial  Code,  and  if  a  suit  to 
enforce  a  lien  or  remove  cloud  from  title  would  come  under 
§  57,  Judicial  Code. 

§  353.  Arising  under  the  Constitution. 

Original. 

~Pt.  Subd.  First,  §  24,  Judicial  Code,*  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  135,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
".  .  .  Of  all  suits  of  a  civil  nature,  at  common  law  or  in 
equity  .  .  .  where  the  matter  in  controversy  .  .  .  (a) 
arises  under  the  Constitution  of  the  United  States 


Removal. 

Pt.  §  28,  Judicial  Code*  86  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  140,  1912  Supp.  F.  S.  A.  v.  1,  p.  144-  "Any  suit  of 
a  civil  nature,  at  law  or  in  equity,  arising  under  the  Con- 
stitution ...  of  the  United  States  ...  of  which 
the  district  courts  of  the  United  States  are  given  original 
jurisdiction  by  this  title,  which  may  now  be  pending  or 
which  may  hereafter  be  brought  in  any  state  court,  may  be 
removed  by  the  defendant  or  defendants  therein  to  the  dis- 
trict court  of  the  United  States  for  the  proper  district." 

Also  separable  controversies.     See  our  §  289,  ante. 

*  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  «,  ante,  our  §  221. 
ar  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  c,  ante,  our  §  221. 


224        MONTGOMERY'S  MANUAL  or  FEDERAL  PROCEDURE      §  354 

Amount. 

Pt.  Subd.  First,  §  24,  Judicial  Code*  86  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  135,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
".  .  .  where  the  matter  in  controversy  exceeds,  exclusive 
of  interest  and  costs,  the  sum  or  value  of  three  thousand  dol- 
lars, and  (a)  arises  under  the  Constitution.  .  .  ." 

Venue. 

In  the  district  whereof  defendant  is  an  inhabitant  under  §  51, 
Judicial  Code,  unless  there  are  several  defendants  residing  in 
different  districts  in  the  same  state  or  different  divisions  in  the 
same  district,  when  the  action  will  be  in  any  such  district  or 
division  under  §§  52,  53,  Judicial  Code,  and  except  in  local  ac- 
tions, §§  54,  55,  57,  Judicial  Code. 

§  354.  Arising  under  the  Laws  of  the  United  States. 

Original. 

Pt.  Subd.  First,  §  24,  Judicial  Code,1  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  135,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
".  .  .  Of  all  suits  of  a  civil  nature,  at  common  law  or  in 
equity  r,  ,...,  .  where  the  matter  in  controversy  (a)  arises 
under  the  .  .  .  laws  of  the  United  States.  .  .  .." 

Removal. 

Pt.  §  28,  Judicial  Code*  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  140,  1912  Supp.  F.  S.  A.  v.  1,  p.  144.  "Any  suit  of 
a  civil  nature,  at  law  or  in  equity,  arising  under  the  .  .  . 
laws  of  the  United  States  ...  of  which  the  district  courts 
of  the  United  States  are  given  original  jurisdiction  by  this 
title,  which  may  now  be  pending  or  which  may  hereafter  be 
brought,  in  any  state  court,  may  be  removed  by  the  de- 
fendant or  defendants  therein  to  the  district  court  of  the 
United  States  for  the  proper  district." 

Also  separable  controversies.     See  our  §  289,  ante. 

Amount. 

Pt.  Subd.  First,  §  24,  Judicial  Code*  36  Stat.  at  L.  1091, 

l>  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  b,  ante,  our  §  194. 
*  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *>,  ante,  our  §  194. 
J  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  «,  ante,  our  §  221. 
k  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»,  ante,  our  §  194. 


§    355       DISTKICT   COURTS JURISDICTION,   AMOUNT,    VENUE         225 

Comp.  St.  1911,  p.  135,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
".  .  .  where  the  matter  in  controversy  exceeds,  exclusive 
of  interest  and  costs,  the  sum  or  value  of  three  thousand  dol- 
lars, and  (a)  arises  under  the  .  .  .  laws  of  the  United 
States.  .  .  ." 

This  provision  does  not  apply  to  many  special  laws  referred  to 
in  subdivisions  two  to  twenty-five  inclusive,  §  24,  Judicial  Code. 

Venue. 

In  the  district  whereof  defendant  is  an  inhabitant  under  §  51, 
Judicial  Code,  unless  there  are  several  defendants  residing  in 
different  districts  in  the  same  state  or  different  divisions  in  the 
same  district,  when  the  action  will  be  in  any  such  district  or 
division  under  §§  52,  53,  Judicial  Code,  and  except  in  local  ac- 
tions, §§  54,  55,  57,  Judicial  Code,  or  where  there  is  some  special 
provision  under  a  particular  law.  See  chapter  5,  ante,  on  venue. 

§  355.  Arising  under  Treaties. 

Original. 

PL  Subd.  First,  §  2 If,  Judicial  Code,1  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  135,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
".  .  .  Of  all  suits  of  a  civil  nature,  at  common  law  or  in 
equity  .  .  .  where  the  matter  in  controversy  .  .  .  (a) 
arises  under  .  .  .  treaties  made  or  which  shall  be  made 
under  their  authority.  .  .  ." 

Removal. 

PL  §  28,  Judicial  Code™  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  140,  1912  Supp.  F.  S.  A.  v.  1,  p.  144-  "Any  suit 
of  n  civil  nature,  at  law  or  in  equity  arising  under  .  . 
treaties  made,  or  which  shall  be  made,  under  their  (United 
States)  authority,  of  which  the  district  courts  are  given  origi- 
nal jurisdiction  by  this  title,  which  may  now  be  pending  or 
which  may  hereafter  be  brought,  in  any  state  court,  may  be 
removed  by  the  defendant  or  defendants  therein  to  the  dis- 
trict court  of  the  United  States  for  the  proper  district.  .  .  ." 

Also  separable  controversies.     See  our  §  289,  ante. 

1  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote,  t>,  ante,  our  §  194. 
m  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote,  «,  ante,  our  §  221. 
Montg. — 15. 


226        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  350 

Amount. 

Pt.  Subd.  First,  §  24,  Judicial  Code,"  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  135,  1912  Supp.  F.  8.  A.  v.  1,  p.  138. 
".  .  .  where  the  matter  in  controversy  exceeds,  exclusive 
of  interest  and  costs,  the  sum  or  value  of  three  thousand 
dollars  and  (a)  arises  under  .  .  .  treaties." 

Venue. 

In  the  district  whereof  defendant  is  an  inhabitant  under  §  51, 
Judicial  Code,  unless  there  are  several  defendants  residing  in 
different  districts  in  the  same  state  or  different  divisions  in  the 
same  district,  when  the  action  will  be  in  any  such  district  or 
division  under  §§  52,  53,  Judicial  Code,  and  except  in  local  ac- 
tions, §§  54,  55,  57,  Judicial  Code. 

§  356.  Between  Citizens  of  Different  States. 

Original. 

Pt.  Subd.  First,  §  24,  Judicial  Code,0  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  135,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
".  .  .  Of  all  suits  of  a  civil  nature,  at  common  law  or  in 
equity  .  .  .  where  the  matter  in  controversy  .  .  .  (b) 
is  between  citizens  of  different  states.  .  .  ." 

Rembvdl. 

Pt.  §  28,  Judicial  Code*  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  135,  1912  Supp.  F.  S.  A.  v.  1,  p.  144-  ".  .  - 
Any  other  suit  of  a  civil  nature  at  law  or  in  equity  of  which 
the  district  courts  of  the  United  States  are  given  jurisdiction 
by  this  title,  and  which  are  now  pending  or  which  may  here- 
after be  brought  in  any  state  court,  may  be  removed  into  the 
district  court  of  the  United  States  for  the  proper  district  by 
the  defendant  or  defendants  therein,  being  nonresidents  of 
that  state.  And  when  in  any  suit  mentioned  in  this  section 
there  shall  be  a  controversy  which  is  wholly  between  citizens 
of  different  states,  and  which  can  be  fully  determined  as  be- 
tween them,  then  either  one  or  more  of  the  defendants  actu- 
ally interested  in  such  controversy  may  remove  said  suit  into 
the  district  court  of  the  United  States  for  the  proper  district. 


»  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»,  ante,  our  §  194. 
o  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *>,  ante,  our  §  194. 
P  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  c,  ante,  our  §  221. 


§    357       DISTRICT    COURTS JURISDICTION,   AMOUNT,    VENUE         227 

Amount. 

Pt.  Subd.  First,  §  24,  Judicial  Code,9  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  135,  1912  Supp.  F.  8.  A.  v.  1,  p.  138. 
".  .  .  where  the  matter  in  controversy  exceeds,  exclusive 
of  interest  and  costs,  the  sum  or  value  of  three  thousand 
dollars,  .  .  .  and  (b)  is  between  citizens  of  different 
states." 

Venue.1 

Pt.  §  51,  Judicial  Code*  36  Stat.  at  L.  1101,  Comp.  St. 
1911,  p.  150,  1912  Supp.  F.  S.  A.  v.  1,  p.  153.  "„....  and 
except  as  provided  in  the  six  succeeding  sections 
where  the  jurisdiction  is  founded  only  on  the  fact  that  the  ac- 
tion is  between  citizens  of  different  states,  suit  shall  be 
brought  only  in  the  district  of  the  residence  of  either  plain- 
tiff or  defendant." 

§  357.  Between  Citizens  of  a  State  and  Foreign  States. 

Original. 

Pt.  Subd.  First,  §  24,  Judicial  Code,m  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  135,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
".  .  .  Of  all  suits  of  a  civil  nature,  at  common  law  or  in 
equity,  .  .  .  where  the  matter  in  controversy  .  .  .  (c) 
is  between  citizens  of  a  state  and  foreign  states.  .  .  ." 

Removal. 

Pt.  §  28,  Judicial  Code*  36  Stat.  at  L.  1094,  Com,p.  St. 
1911,  p.  141,  1912  Supp.  F.  S.  A.  v.  1,  p.  144.  ".  .  .  Any 
other  suit  of  a  civil  nature,  at  law  or  in  equity,  of  which 
the  district  courts  of  the  United  States  are  given  jurisdiction 
by  his  title,  and  which  are  now  pending  or  which  may  here- 
after be  brought,  in  any  state  court,  may  be  removed  into  the 
district  court  of  the  United  States  for  the  proper  district  bj 
the  defendant  or  defendants  therein,  being  nonresidents  of 
that  state.  .  .  ." 

Amount. 

Pt.  Subd.  First,  §  24,  Judicial  Code,™  36  Stat.  at  L.  1091 , 

1  Whittaker  v.  111.  C.  R.  Co.  176  Fed.  130. 

«i  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  b,  ante,  our  §  194. 
'For  Annotation  of  this  §  51,  Judicial  Code,  see  footnote  a,  ante,  our  §  161. 
*»  For  Annotation  of  this  §  24, 'Judicial  Code,  see  footnote  *»,  ante,  our  §  194. 
*  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  «,  ante,  'our  §  221. 
*»  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  t»,  ante,  our  §  114. 


228     MONT(;oMKHY'3  MANUAL  OF  FEDERAL  PROCEDURE   §  358 

Comp.  St.  1911,  p.  135,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
".  .  .  where  the  matter  in  controversy  exceeds,  exclusive 
of  interest  and  costs,  the  sum  or  value  of  three  thousand  dol- 
lars and  .  .  .  (c)  is  between  citizens  of  a  state  and 
foreign  states.  .  .  ." 

Venue. 

A  citizen  in  the  district  whereof  he  is  a  resident  under  §  51, 
Judicial  Code,  and  the  foreign  state  wherever  valid  service  may 
be  made. 

§  358.  Between  Citizens  of  a  State  and  Foreign  Citizens 
or  Subjects. 
Original. 

PL  Subd.  First,  §  84,  Judicial  Code 7  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  135,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
"Of  all  suits  of  a  civil  nature,  at  common  law  or  in  equity 
where  the  matter  in  controversy  .  .  .  (c)  is 
between  citizens  of  a  state  and  foreign  .  .  .  citizens  or 
subjects.  .  .  ." 

Removal. 

Pt.  §  28,  Judicial  Code,™  36  Stat.  at  L  109 4,  Comp.  St. 
1911,  p.  141,  1912  Supp.  F.  S.  A.  v.  1,  p.  144-  ".  .  .  Any 
other  suit  of  a  civil  nature,  at  law  or  in  equity,  of  which  the 
district  courts  of  the  United  States  are  given  jurisdiction 
by  this  title,  and  which  are  now  pending  or  which  may  here- 
after be  brought,  in  any  state  court,  may  be  removed  into 
the  district  court  of  the  United  States  for  the  proper  district 
by  the  defendant  or  defendants  therein,  being  nonresidents 
of  that  state.  .  .  ." 

Amount. 

Pt.  Subd.  First,  §  24,  Judicial  Code*  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  135,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
".  .  .  where  the  matter  in  controversy  exceeds,  exclusive 
of  interest  and  costs,  the  sum  or  value  of  three  thousand 
dollars  and  .  .  .  (c)  is  between  citizens  of  a  state  and 
foreign  .  .  .  citizens  or  subjects.  .  .  ." 

*  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»,  ante,  our  §  194. 
*v  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  <*,  ante,  our  §  221. 
x  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  b,  ante,  our  §  194. 


§    359       DISTRICT   COURTS JURISDICTION,    AMOUNT,    VENUE         229 

Venue. 

Unless  there  is  more  than  one  district  in  the  state  and  other 
defendants  residing  in  such  other  districts,  under  §  52  of  the 
Judicial  Code,  or  likewise  under  §  53,  Judicial  Code,  where  there 
are  more  than  one  division  in  the  district,  the  suit  should  be 

s  ' 

brought  in  the  district  whereof  defendant  is  an  inhabitant  under 
§  51,  Judicial  Code.  Galveston  and  Ry.  v.  Gonzales,  151  U.  S. 
506,  38  L.  ed.  248,  14  Sup.  Ct.  Rep.  401.  A  suit  against  an  alien 
may  be  brought  where  valid  service  may  be  made.  In  re  Holvorst, 
150  U.  S.  660,  37  L.  ed.  1211,  14  Sup.  Ct.  Rep.  221. 

§  359.  Crimes  and  Offenses. 

Original. 

Subd.  Second,  §  24,  Judicial  Code*  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  135,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
"Of  all  crimes  and  offenses  cognizable  under  the  authority 
of  the  United  States." 

Exclusive. 

Subd.  First,  §  256,  Judicial  Code*  36  Stat.  at  L.  1160, 
Comp.  St.  1911,  p.  234,  1912  Supp.  F.  S.  A.  v.  1,  p.  18ft. 
"Of  all  crimes  and  offenses  cognizable  under  the  authority 
of  the  United  States." 

Amount. 

Not  material  under  last  part  of  subd.  first,  §  24,  Judicial  Code.a 

Venue.2 

Capital  offenses — county  "where  the  offense  was  committed, 
where  that  can  be  done  without  great  inconvenience."  (§  40, 
Judicial  Code.) 

•  Offenses  on  high  seas  or  elsewhere  out  of  the  jurisdiction  of  any 
particular  state  or  district — "in  the  district  where  the  offender 
is  found  or  into  which  he  is  first  brought."  (§  41,  Judicial 
Code.) 

2  §  174,  infra. 

y  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *>,  ante,  our  §  lf>4. 
«  For  Annotation  of  this  §  256,  Judicial  Code,  see  footnote  a,  ante,  our  §  102. 
»  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  b,  ante,  our  §  194. 


230        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  360 

Offenses  committed  in  two  districts — in  either  district.  (§  42, 
Judicial  Code.) 

Offenses  against  civil  rights  law — "wherever  the  defendant  may 
be  found."  (§  3,  act  March  1,  1875,  ch.  114,  18  Stat.  at  L. 
335.) 

Offenses  against  act  establishing  bureau  of  animal  industry 
• — "within  the  district  in  which  the  violation  was  committed."  (§ 
9,  act  May  29,  1884,  ch.  60,  23  Stat.  at  L.  33,  Comp.  St.  1901, 
p.  301,  1  F.  S.  A.  455.) 

§  360.  Admiralty  and  Maritime  Jurisdiction. 
Original. 

PL  Subd.  Third,  §  24,  Judicial  Code*  36  Stat.  at  L.  1091, 

Comp.  St.  1911,  p.  136,  1912  Supp.  F.  8.  A.  v.  1,  p.  138. 

"Of  all  civil  causes  of  admiralty  and  maritime  jurisdiction. 

saving  to  suitors   in  all  cases  the  right  of  a  common-law 

remedy  where  the  common-law  is  competent  to  give  it ;  .  .   ." 

Exclusive. 

Subd.  Third,  §  256,  Judicial  Code,*  36  Stat.  at  L.  1160, 
Comp.  St.  1911,  p.  234,  1912  Supp.  F.  8.  A.  v.  1,  p.  138. 
"Of  all  civil  causes  of  admiralty  and  maritime  jurisdiction, 
saving  to  suitors  in  all  cases  the  right  of  a  common-law  rem- 
edy where  the  common  law  is  competent  to  give  it ;  .  .  ." 

Removal. 

Question  of  jurisdiction  may  be  raised  on  removal  and  case 
dismissed.8 

Amount. 

Not  material  under  last  part  of  subd.  first,  §  24,  Judicial  Code.d 

Venue. 

This  depends  on  the  nature  of  the  action,  if  in  personam  in 
any  district  in  which  service  may  be  made  on  defendant,  if  in 
rem  in  any  district  in  which  the  property  may  be  apprehended.* 

8  Auracher  v.  Omaha  &  S.  L.  R.  Co.  102  Fed.  1. 

«1  Cyc.  850. 

*»  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»,  ante,  our  §  194. 

«  For  Annotation  of  this  §  256,  Judicial  Code,  see  footnote  a,  ante,  our  §  192. 

*  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  l»,  ante,  our  §  lif* 


§    362       DISTRICT    COURTS JURISDICTION,   AMOUNT,    VENUE          231 

§  361.  Slave  Trade. 
Original. 

Subd.  Fourth,  §  24,  Judicial  Code*  36  Stat.  at  L.  1091, 

Comp.  St.  1911,  p.  136,  1912  Supp.  F.  8.  A.  v.  1,  p.  138. 

"Of  all  suits  arising  under  any  law  relating  to  slave  trade." 

Removal. 

PL  §  28,  Judicial  Code,*  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  140,  1912  Supp.  F.  S:  A.  v.  1,  p.  144.  "Any  suit 
of  a  civil  nature  at  law  or  in  equity,  arising  under  the 
.  .  .  laws  of  the  United  States  ...  of  which  the  dis- 
trict courts  of  the  United  States  arj  given  original  juris- 
diction by  this  title,  which  may  now  be  pending  or  which 
may  hereafter  be  brought  in  any  state  court,  may  be  removed 
by  the  defendant  or  defendants  therein  to  the  district  court 
of  the  United  States  for  the  proper  district." 

Amount. 

Not  material  under  last  part  of  subd.  first,  §  24,  Judicial  Code.K 

Venue. 

In  the  district  whereof  defendant  is  an  inhabitant  under  §  51, 
Judicial  Code,  unless  there  are  several  defendants  residing  in 
different  districts  in  the  same  state  or  different  divisions  in  the 
same  district,  when  the  action  will  be  in  any  such  district  or 
division  under  §§  52,  53,  Judicial  Code. 

§  362.  Revenue  Laws. 

Original. 

Subd.  Fifth,  §  24,  Judicial  Code*  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  136,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
"Of  all  cases  arising  under  any  law  providing  for  internal 
revenue,  or  from  revenue  imports  or  tonnage,  except  those 
cases  arising  under  any  law  providing  revenue  from  imports, 
jurisdiction  of  which  has  been  conferred  upon  the  court  of 
customs  appeals." 

«  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»,  ante,  our  §  194. 
'For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  e,  ante,  our  §  221. 
K  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»,  ante,  our  §  194. 
h  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»,  ante,  our  §  194. 


232        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  363 

Removal. 

./'/.§  28,  Judicial  Code*  86  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  140f  1912  Supp.  F.  S.  A.v.l,  p.  144-  "Any  suit  of  a 
civil  nature,  at  law  or  in  equity,  arising  under  the  .  .  . 
laws  of  the  United  States  ...  of  which  the  district 
courts  of  the  United  States  are  given  original  jurisdiction  by 
this  title,  which  may  now  be  pending  or  which  may  hereafter 
be  brought  in  any  state  court,  may  be  removed  by  the  de- 
fendant or  defendants  therein  to  the  district  court  of  the 
United  States  for  the  proper  district." 

Amount. 

Not  material  under  last  part  of  gubd.  first,  §  24,  Judicial  Code.1 

Venue. 

PL  §  44,  Judicial  Code*  36  Stat.  at  L.  1100,  Comp.  St. 
1911,  p.  148,  1912  Supp.  F.  S.  A.  v.  1,  p.  152.  ".  .  . 
either  in  the  district  where  the  liability  for  such  tax  occurs 
or  in  the  district  where  the  delinquent  resides." 

§  363.  Postal  Laws. 

Original. 

Subd.  Sixth,  §  24,  Judicial  Code,1  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  136,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
"Of  all  cases  arising  under  the  postal  laws." 

Removal. 

Pt.  §  28,  Judicial  Code,m  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  140,  1912  Supp.  F.  S.  A.  v.  1,  p.  1U-  "Any 
suit  of  a  civil  nature,  at  law  or  in  equity,  arising  under  the 
.  .  .  laws  of  the  United  States  ...  of  which  the  dis- 
trict courts  of  the  United  States  are  given  original  juris- 
diction by  this  title,  which  may  now  be  pending  or  which 
may  hereafter  be  brought  in  any  state  court,  may  be  re- 
moved by  the  defendant  or  defendants  therein  to  the  dis- 
trict court  of  the  United  States  for  the  proper  district." 

*  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  c  ante,  our  §  22]. 
J  For  Annotation  of  this  §  24.  Judicial  Code,  see  footnote  b  ante,  our  §  194. 
k  For  Annotation  of  this  §  44,  Judicial  Code,  see  footnote  »  ante,  our  §  176. 
1  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  b  ante,  our  §  104. 
"'  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  «  ante,  our  §  221. 


§    364       DISTRICT   COURTS JURISDICTION,   AMOUNT,    VENUE         233 

Amount. 

JSTot  material  under  last  part  of  subd.  first,  §  24,  Judicial  Code.n 

Venue. 

x  In  the  district  whereof  defendant  is  an  inhabitant  under  §  51, 
Judicial  Code,  unless  there  are  several  defendants  residing  in 
different  districts  in  the  same  state  or  different  divisions  in  the 
some  district,  when  the  action  will  be  in  any  such  district  or 
division  under  §§  52,  53,  Judicial  Code. 

§  364.  Patent — Copyright — Trademark  Laws. 

Original. 

Subd.  Seventh,  §  24,  Judicial  Code,0  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  234,  1912  Supp.  F.  8.  A.  v.  1,  p.  138. 
"Of  all  suits  at  law  or  in  equity  arising  under  the  patent, 
copyright,  and  trademark  laws." 

Exclusive.     (Except  as  to  trademarks.) 

Subd.  Fifth,  §  256,  Judicial  Code,9  36  Stat.  at  L.  1160, 
Comp.  St.  1911,  p.  234,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
"Of  all  cases  arising  under  the  patent-right  or  copyright  laws 
of  the  United  States." 

Removal. 

Question  of  state  court's  jurisdiction  may  be  raised  after  re- 
moval and  case  dismissed.5 

Amount. 

Not  material  under  last  part  of  subd.  first,  §  24,  Judicial  Code.*1 

Venue. 

Pt.  §  48,  Judicial  Code,T  36  Stat.  at  L.  1100,  Comp.  St. 
1911,  p.  149, 1912  Supp.  F.  S.  A.  v.  1,  p.  153.".  .  .  in  the 
district  court  in  which  the  defendant  is  an  inhabitant,  or  in 

8  Auracher  v.  Omaha  &  St.  L.  R.  Co.  102  Fed.  1. 

n  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *>,  ante,  our  §  104. 
«  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  t>,  ante,  our  §  194. 
P  For  Annotation  of  this  §  256,  Judicial  Code,  see  footnote  «,  ante,  our  §  192. 
<i  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *>,  ante,  our  §  194. 
r  For  Annotation  of  this  §  48,  Judicial  Code,  see  footnote  k,  ante,  our  §  171. 


234        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  365 

any  district  in  which  the  defendant,  whether  a  person,  part- 
nership or  corporation  shall  have  committed  acts  of  infring- 
ment  and  have  a  regular  and  established  place  of  business. 


§  365.  Commerce  Laws. 

Original. 

Subd.  Eighth,  §  24,  Judicial  Code,"  86  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  136,  1912  Supp.  F.  8.  A.  v.  1,  p.  138. 
"Of  all  suits  and  proceedings  arising  under  any  law  regula- 
ting commerce,  except  those  suits  and  proceedings  exclusive 
jurisdiction  of  which  has  been  conferred  upon  the  commerce 
court." 

Commerce  court  now  abolished  and  jurisdiction  transferred  to 
district  court.  See  ch.  9,  Judicial  Code,  in  Appendix. 

Removal. 

Pt.  §  28,  Judicial  Code*  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  140,  1912  Supp.  F.  S.  A.  v.  1,  p.  144-  "Any  suit  of 
a  civil  nature,  at  law  or  in  equity,  arising  under  the  laws  of 
the  United  States  ...  of  which  the  district  courts  of 
the  United  §tates  are  given  original  jurisdiction  by  this 
title,  which  may  now  be  pending  or  which  may  hereafter  be 
brought  in  any  state  court,  may  be  removed  by  the  defendant 
or  defendants  therein  to  the  district  court  of  the  United 
States  for  the  proper  district." 

Amount. 

Not  material  under  last  part  of  subd.  first,  §  24,  Judicial  Code, 
except  property  damages  under  amendment  to  §  28,  Judicial  Code, 
quoted  in  our  §  299  above. w 

Venue. 

In  the  district  in  which  defendant  resides  or  in  which  is  located 
the  principal  operating  office  of  the  carrier,  or  through  which  the 
road  of  the  carrier  runs.  §  16,  Interstate  Commerce  Act,  1912 

•  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  t».  ante,  our  §  194. 
t  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  <?,  ante  our  §  221. 
«  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *>,  ante,  our  §  194. 


§    367       DISTRICT   COURTS JURISDICTION,   AMOUNT,    VENUE         235 

Supp.  F.  S.  A.  v.  1,  p.  123.     Venue  of  suits  to  enforce,  set  aside, 
or  suspend  orders  of  the  commission  is  set  out  §  180,  infra. 

§  366.  Penalties  and  Forfeitures. 
^  Original. 

Subd.  Ninth,  §  24,  Judicial  Code /  36  8 tat  at  L.  1091, 
Comp.  St.  1911,  p.  136,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
"Of  all  suits  and  proceedings  for  the  enforcement  of  penal- 
ties and  forfeitures  incurred  under  any  law  of  the  United 
States." 

Exclusive. 

Subd.  Second,  §  256,  Judicial  Code,™  36  Stat.  at  L.  1160, 
Co-mp.  St.  1911,  p.  234,  1912  Supp.  F.  3.  A.  v.  1,  p.  238. 
"Of  all  suits  for  penalties  and  forfeitures  incurred  under  the 
laws  of  the  United  States." 

Amount. 

Not  material  under  last  part  of  subd.  first,  §  24,  Judicial  Code.* 

Venue. 

PL  §  43,  Judicial  Code*  36  Stat.  at  L.  1100,  Comp.  St. 
1911,  p.  148,  1912  Supp.  F.  S.  A.  v.  1,  p.  153.  ".  .  . 
either  in  the  district  where  they  accrue  or  in  the  district 
where  the  offender  is  found." 

§  367.  Seizures  for  Forfeitures  on  High  Seas. 

Original. 

Pt.  Subd.  Third,  §  24,  Judicial  Code,'  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  136,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
".  .  .  of  all  seizures  on  land  or  waters  not  within  admir- 
alty and  maritime  jurisdiction;  of  all  prizes  brought  into 
the  United  States ;  and  of  all  proceedings  for  the  condemna- 
tion of  property  taken  as  prize." 

Exclusive. 

Subd.  Fourth,  §  256,  Judicial  Code,*  36  Stat.  at  L.  1160, 

v  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  b,  ante,  our  §  194. 
^  For  Annotation  of  this  §  256,  Judicial  Code,  see  footnote  «,  ante,  our  §  192. 
x  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»,  ante,  our  §  194. 
T  For  Annotation  of  this  §  43,  Judicial  Code,  see  footnote  «,  ante,  our  §  175. 
»  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  l»,  ante,  our  §  194. 
»  For  Annotation  of  this  §  256,  Judicial  Code,  see  footnote  a,  ante,  our  §  192. 


236         MONTGOMERY'S  MANUAL  OP  FEDERAL  PROCEDURE     §  368 

Camp.  St.  1911,  p.  234,  1012  Supp.  F.  S.  A.  v.  1,  p.  238. 
"Of  all  seizures  under  the  laws  of  the  United  States,  on 
land  or  on  waters  not  within  admiralty  and  maritime  juris- 
diction ;  of  all  prizes  brought  into  the  United  States,  and  of 
all  proceedings  for  the  condemnation  of  property  taken  as 
prize." 

Amount. 

Not  material  under  last  part  of  subd.  first,  §  24,  Judicial  Code.b 

Venue. 

See  also  our  §§175  and  177,  ante. 

Pt.  §  47,bb  Judicial  Code.  ".  .  .  in  any  district  into 
which  the  property  so  seized  is  brought  and  proceedings  in- 
stituted. .  t?j  r.rr:  (If  made  in  any  district)  in  the  district 
where  the  seizure  is  made,  except  in  cases  where  it  is  other- 
wise provided." 

§  368.  Suits  by  Assignee  of  Debenture  for  Drawback  for 
Duties. 

Original. 

Subd.  Tenth,  §  24,  Judicial  Code*  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  136,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
"Of  all  suits  by  the  assignee  of  any  debenture  for  drawback 
of  duties,  issued  under  any  law  for  the  collection  of  duties, 
against  the  person  to  whom  such  debenture  was  originally 
granted,  or  against  any  indorser  thereof,  to  recover  the 
amount  of  such  debenture." 

Removal. 

Pt.  §  28,  Judicial  Code.  "Any  suit  of  a  civil  nature,  at 
law  or  in  equity,  arising  under  the  .  •;*.;:/*  laws  of  the 
United  States  •;i.'-:ii»->.  of  which  the  district  courts  of  the 
United  States  are  given  original  jurisdiction  by  this  title, 
which  may  now  be  pending  or  which  may  hereafter  be  brought 
in  any  state  court,  may  be  removed  by  the  defendant  or  de- 
fendants therein  to  the  district  coTirt  of  the  United  States  for 
the  proper  district." 

*>  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *>,  ante,  our  §  194. 
*>*»  For  Annotation  of  this  §  47,  Judicial  Code,  see  footnote  v}  ante,  our  §  178. 
«  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  •»,  ante,  our  §  194. 


§    369       DISTRICT    COURTS JURISDICTION,    AMOUNT,    VENUE          237 

Amount. 

Xot  material  under  last  part  of  subd.  first,  §  24,  Judicial  Code.d 

Venue. 

In  the  district  whereof  defendant  is  an  inhabitant  under  §  51, 
Judicial  Code,  unless  there  are  several  defendants  residing  in 
different  districts  in  the  same  state  or  different  divisions  in  the 
same  district,  when  the  action  will  be  in  any  such  district  or  divi- 
sion under  §§  52,  53,  Judicial  Code. 

§  369.  Protection  of  Acts  under  United  States  Revenue 
Laws  and  to  Enforce  the  Right  to  Vote. 

Original. 

Subd.  Eleventh,  §  24,  Judicial  Code*  36  8 tat.  at  L.  1091, 
Comp.  St.  1911,  p.  137,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
"Of  all  suits  brought  by  any  person  to  recover  damages  for 
any  injury  to  his  person  or  property  on  account  of  any  act 
done  by  him,  under  any  law  of  the  United  States,  for  the 
protection  or  collection  of  any  of  the  revenues  thereof,  or  to 
enforce  the  right  of  citizens  of  the  United  States  to  vote  in 
the  several  states." 

Removal. 

Pi.  §  28,  Judicial  Code.  "Any  suit  of  a  civil  nature,  at 
law  or  in  equity,  arising  under  the  .  .  .  laws  of  the  United 
States  ...  of  which  the  district  courts  of  the  United 
States  are  given  original  jurisdiction  by  this  title,  which  may 
now  be  pending  or  which  may  hereafter  be  brought  in  any 
state  court,  may  be  removed  by  the  defendant  or  defendants 
therein  to  the  district  court  of  the  United  States  for  the  prop- 
er district." 

Amount. 

"Not  material  under  last  part  of  subd.  first,  §  24,  Judicial  Code.* 

Venue. 

In  the  district  whereof  defendant  is  an  inhabitant  under  §  51, 

d  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *'.  ante,  our  §  1^4. 
«  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»,  ante,  our  §  104. 
*  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»,  ante,  our  §  1!)4. 


MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  370 

Judicial  Code,  unless  there  are  several  defendants  residing  in 
different  districts  in  the  same  state  or  different  divisions  in  the 
same  district,  when  the  action  may  be  in  any  such  district  or 
division  under  §§  52,  53,  Judicial  Code. 

§  370.  Civil  Rights  Cases. 

Original. 

Subd.  Twelfth,  §  24,  Judicial  Code*  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  137,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
"Of  all  suits  authorized  by  law  to  be  brought  by  any  per- 
son for  the  recovery  of  damages  on  account  of  any  injury 
to  "his  person  or  property,  or  of  the  deprivation  of  any  right 
or  privilege  of  a  citizen  of  the  United  States,  by  any  act  done 
in  furtherance  of  any  conspiracy  mentioned  in  section  nine- 
teen hundred  and  eighty,  Revised  Statutes." 

Subd.  Thirteenth,  §  24,  Judicial,  Code?  36  Stat.  at  L. 
1091,  Comp.  St.  1911,  p.  137,  1912  Supp.  F.  S.  A.  v.  1,  p. 
138.  "Of  all  suits  authorized  by  law  to  be  brought  against 
any  person  who,  having  knowledge  that  any  of  the  wrongs 
mentioned  in  section  nineteen  hundred  and  eighty,  Revised 
Statutes,  are  about  to  be  done,  and  having  power  to  prevent 
or  aid  in  preventing  the  same,  neglects  or  refuses  so  to  do, 
to  recover  damages  for  any  such  wrongful  act." 

Subd.  Fourteenth,  §  24,  Judicial  Code,1  36  Stat.  at  L. 
1091,  Comp.  St.  1911,  p.  137,  1912  Supp.  F.  S.  A.  v.  1,  p. 
138.  "Of  all  suits  at  law  or  in  equity,  authorized  by  law 
to  be  brought  by  any  person  to  redress  the  deprivation,  under 
color  of  any  law,  statute,  ordinance,  regulation,  custom,  or 
usage  of  any  state,  of  any  right,  privilege,  or  immunity, 
secured  by  the  Constitution  of  the  United  States,  or  of  any 
right  secured  by  any  law  of  the  United  States  providing  for 
equal  rights  of  citizens  of  the  United  States,  «>r  of  all  persons 
within  the  jurisdiction  of  the  United  States." 

Removal. 

§  31,  Judicial  Code*  36  Stat.  at  L.  1096,  Com-p.  St.  1911, 
p.  143,  1912  Supp.  F.  S.  A.  v.  1,  p.  147.  "When  any  civil 

K  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *,  ante,  our  §  194. 
h  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  i»,  ante,  our  §  194. 
1  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *>,  ante,  our  §  194. 
J  For  Annotation  of  this  §  31,  Judicial  Code,  see  footnote  1»,  ante,  our  §  216. 


§    371       I>iSTRICT    COUKTS J  UK1SDICTION,    AMOUNT,    VENUE          239 

suit  or  criminal  prosecution  is  commenced  in  any  state  court, 
for  any  cause  whatsoever,  against  any  person  who  is  denied 
or  cannot  enforce  in  the  judicial  tribunals  of  the  state,  or 
in  the  part  of  the  state  where  such  suit  or  prosecution  is 
pending,  any  right  secured  to  him  by  any  law  providing 
for  the  equal  civil  rights  of  citizens  of  the  United  States,  or 
of  all  persons  within  the  jurisdiction  of  the  United  States, 
or  against  any  officer,  civil  or  military,  or  other  person,  for 
any  arrest  or  imprisonment  or  other  trespasses  or  wrongs 
made  or  committed  by  virtue  of  or  under  color  of  authority 
derived  from  any  law  providing  for  equal  rights  as  afore- 
said, or  for  refusing  to  do  any  act  on  the  ground  that  it 
would  be  inconsistent  with  such  law,  such  suit  or  prosecu- 
tion may,  upon  the  petition  of  such  defendant,  filed  in  said 
state  court  at  any  time  before  the  trial  or  final  hearing  of 
the  cause,  stating  the  facts  and  verified  by  oath,  be  removed 
for  trial  into  the  next  district  court  to  be  held  in  the  district 
where  it  is  pending." 

Venue. 

In  the  district  whereof  defendant  is  an  inhabitant  under  §  51, 
Judicial  Code,  unless  there  are  several  defendants  residing  in  dif- 
ferent districts  in  the  same  state  or  different  divisions  in  the  same 
district,  when  the  action  may  be  in  any  such  district  or  division 
under  §§  52,  53,  Judicial  Code. 

§  371.  Suits  to  Recover  Possession  of  an  Office. 

Original. 

Subd.  Fifteenth,  §  24,  Judicial  Code*  36  Stat.  at  L. 
1091,  Comp.  St.  1911,  p.  137,  1912  Supp.  F.  S.  A.  v.  1,  p. 
138.  "Of  all  suits  to  recover  possession  of  any  office,  except 
that  of  elector  of  President  or  Vice  President,  Representative 
in  or  delegate  to  Congress,  or  member  of  a  state  legislature, 
authorized  by  law  to  be  brought,  wherein  it  appears  that  the 
sole  question  touching  the  title  to  such  office  arises  out  of 
the  denial  of  the  right  to  vote  to  any  citizen  offering  to  vote, 
on  account  of  race,  color,  or  previous  condition  of  servi- 
tude: Provided,  That  such  jurisdiction  shall  extend  only  so 
far  as  to  determine  the  rights  of  the  parties  to  such  office 
by  reason  of  the  denial  of  the  right  guaranteed  by  the  Con- 
ic For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»(  ante,  our  §  194. 


240         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  372 

stitution  of  the  United  States,  and  secured  by  any  law,  to 
enforce  the  right  of  citizens  of  the  United  States  to  vote  in 
all  the  states." 

Removal. 

PL  §  28,  Judicial  Code,1  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  140,  1912  Supp.  F.  S.  A.  v.  1,  p.  144-  "Any  suit 
of  a  civil  nature,  at  law  or  in  equity,  arising  under  the  .  .  . 
laws  of  the  United  States  ...  of  which  the  district  courts 
of  the  United  States  are  given  original  jurisdiction  by  this 
title,  which  may  now  be  pending  or  which  may  hereafter  be 
brought  in  any  state  court,  may  be  removed  by  the  defend- 
ant or  defendants  therein  to  the  district  court  of  the  United 
States  for  the  proper  district." 

Amount. 

Not  material  under  last  part  of  subd.  first,  §  24,  Judicial  Code.™ 

Venue. 

In  the  district  whereof  defendant  is  an  inhabitant  under  §  51, 
Judicial  Code,  unless  there  are  several  defendants  residing  in 
different  districts  in  the  same  state  or  different  divisions  in  the 
same  district,  when  the  action  may  lie  in  any  such  district  or  divi- 
sion under  §§  52,  53,  Judicial  Code. 

§  372.  Suits  under  Provisions  Title  "National  Banks." 

Original. 

Subd.  Sixteenth,  §  24,  Judicial  Code,"  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  138,  1912  Supp.  F.  S.  A.  v.  1,  p.  138. 
"Of  all  cases  commenced  by  the  United  States,  or  by  direction 
of  any  officer  thereof,  against  any  national  banking  associa- 
tion, and  cases  for  winding  up  the  affairs  of  any  such  bank ; 
and  of  all  suits  brought  by  any  banking  association  estab- 
lished in  the  district  for  which  the  court  is  held,  under  the 
provision  of  title  "National  Banks,"  Revised  Statutes,  to 
enjoin  the  Comptroller  of  the  Currency,  or  any  receiver 
acting  under  his  direction,  as  provided  by  said  title.  And 
all  national  banking  associations  established  under  the  laws 

1  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote,  c,  ante,  our  §  221. 
m  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  b,  ante,  our  §  194. 
n  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  b,  ante,  our  §  194. 


§    373      DISTRICT   COURTS JURISDICTION,   AMOUNT,   VENUE         241 

of  the  United  States  shall,  for  the  purposes  of  all  other  actions 
by  or  against  them,  real,  personal,  or  mixed,  and  all  suits 
in  equity,  be  deemed  citizens  of  the  states  in  which  they  are 
respectively  located." 

Removal. 

Pi.  §  28,  Judicial  Code,0  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  140,  1912  Supp.  F.  8.  A.  v.  1,  p.  144-  "Any  suit 
of  a  civil  nature,  at  law  or  in  equity,  arising  under  the  . 
laws  of  the  United  States  ...  of  which  the  district  courts 
of  the  United  States  are  given  original  jurisdiction  by  this 
title,  which  may  now  be  pending  or  which  may  hereafter 
be  brought  in  any  state  court,  may  be  removed  by  the  defend- 
ant or  defendants  therein  to  the  district  court  of  the  United 
States  for  the  proper  district." 

Amount. 

Not  material  under  last  part  subd.  first,  §  24-,  Judicial  Code.p 

Venue. 

Pt.  §  49,  Judicial  Code,11  36  Stat.  at  L.  1100,  Comp.  St. 
1911,  p.  149,  1912  Supp.  F.  S.  A.  v.  1,  p.  153.  "...  to 
enjoin  Comptroller  of  the  Currency  ...  in  the  district 
where  such  association  is  located." 

See  subd.  sixteenth,  §  24,  Judicial  Code,  above  quoted. 

Other  suits  in  the  district  whereof  defendant  is  an  inhabitant 
under  §  51,  Judicial  Code,  unless  there  are  several  defendants  re- 
siding in  different  districts  in  the  same  state  or  different  divisions 
in  the  same  district,  when  the  action  will  be  in  any  such  district  or 
division  under  §§  52,  53,  Judicial  Code. 

§  373.  By  Aliens  for  Torts. 

Original. 

Subd.  Seventeenth,  §  24,  Judicial  Code,r  Comp.  St.  1911, 
p.  138,  1912  Supp.  F.  S.  A.  v.  1,  p.  138.  "Of  all  suits 
brought  by  any  alien  for  a  tort  only,  in  violation  of  the  laws 
of  nations  or  of  a  treaty  of  the  United  States." 

o  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  «,  ante,  our  §  221. 
P  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  l»,  ante,  our  §  1!)4. 
«i  For  Annotation  of  this  §  49,  Judicial  Code,  see  footnote  I.  ante,  our  §  172. 
*  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»,  ante,  our  §  194. 
Montg. — 16. 


242  MONTGOAIEUV'S    MAM  Al.   OF   l-'KDKKAL   PKOCEDt'UK        §    374 

Removal. 

PL  §  28,  Judicial  Code,"  36  Stat.  at  L.  1094,  Comp.  Si. 
1911,  p.  140,  1912  Supp.  F.  S.  A.  v.  1,  p.  144-  "Any  suit 
of  a  civil  nature,  at  law  or  in  equity,  arising  under  the  .  .  . 
treaties  made  or  which  shall  be  made  under  their  authority 
.  .  .  of  which  the  district  courts  of  the  United  States  are 
given  original  jurisdiction  by  this  title,  which  may  now  be 
pending  or  which  may  hereafter  be  brought  in  any  state 
court,  may  be  removed  by  the  defendant  or  defendants  there- 
in to  the  district  court  of  the  United  States  for  the  proper 
district.45 

§  34,  Judicial  Code*  36  Stat.  at  L.  1098,  Comp.  St.  1911, 
p.  145,  1912  Supp.  F.  S.  A.  v.  1,  p.  149.  "Whenever  a  per- 
sonal action  has  been  or  shall  be  brought  in  any  state  court 
by  an  alien  against  any  citizen  of  a  state  who  is,  or  at  the 
time  the  alleged  action  accrued  was,  a  civil  officer  of  the 
United  States,  being  a  nonresident  of  that  state  wherein 
jurisdiction  is  obtained  by  the  state  court,  by  personal  serv- 
ice of  process,  such  action  may  be  removed  into  the  district 
court  of  the  United  States  in  and  for  the  district  in  which 
the  defendant  shall  have  been  served  with  the  process,  in 
the  same  manner  as  now  provided  for  the  removal  of  an 
action  brought  in  a  state  court  by  the  provisions  of  the  preced- 
ing section." 

Amount. 

Xot  material  under  last  part  subd.  first,  §  24,  Judicial  Code.™ 

Venue. 

In  the  district  whereof  defendant  is  an  inhabitant  under  §  51, 
Judicial  Code,  unless  there  are  several  defendants  residing  in  dif- 
ferent districts  in  the  same  state  or  different  divisions  in  the  same 
district,  when  the  action  will  be  in  any  such  district  or  division 
under  §§  52,  53,  Judicial  Code. 

§  374.  Against  Consuls. 
Original. 

Stibd.  Eighteenth,  §  24,  Judicial  Code*  36  Stat.  at  L. 

•  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  <?,  ante,  our  §  221. 

*  For  Annotation  of  this  §  34.  Judicial  Code,  see  footnote  P.  ante,  our  §  301. 
n  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  b.  ante,  our  §  194. 
v  For  Annotation  of  this  §  24.  Judicial  Code,  see  footnote  b,  ante,  our  §  194. 


§    375       DISTRICT   COURTS JURISDICTION",,    AMOUNT,   VENUE         24:3 

1091,  Comp.  St.  1911,  p.  -138,  1912  Supp.  F.  S.  A.  v.  1,  p. 
138.     "Of  all  suits  against  consuls  arid  vice  consuls." 

Exclusive. 

PL  Subd.  Eighth,  §  256,  Judicial  Code,™  36  8 tat.  at  L. 
1160,  Comp.  St.  1911,  p.  234,  1912  Supp.  F.  S.  A.  v.  1,  p. 
288.  "Of  all  suits  and  proceedings  against  .  .  .  con- 
suls or  vice  consuls." 

Amount. 

Not  material  under  last  part  subd.  first,  §  24,  Judicial  Code.* 

Venue. 

In  the  district  whereof  defendant  is  an  inhabitant  under  §  51, 
Judicial  Code,  unless  there  are  several  defendants  residing  in 
different  districts  in  the  same  state  or  different  divisions  in  the 
same  district,  when  the  action  may  lie  in  any  such  district  or 
division  under  §§  52,  53,  Judicial  Code,  and  except  in  local  ac- 
tions, §§  54,  55,  57,  Judicial  Code. 

§  375.  Bankruptcy; 

Original. 

Subd.  Nineteenth,  §  24,  Judicial  Code,r  36  Stat.  at  L. 
1091,  Comp.  St.  1911,  p.  138,  1912  Supp.  F.  S.  A.  v.  1,  p. 
138.  "Of  all  matters  and  proceedings  in  bankruptcy." 

Exclusive. 

Subd.  Sixth,  §  256,  Judicial  Code*  36  Stat.  at  L.  1160, 
Comp.  St.  1911,  p.  234,  1912  Supp.  F.  S.  A.  v.  1,  p.  238. 
"Of  all  matters  and  proceedings  in  bankruptcy." 

Amount. 

Not  material  under  last  part  subd.  first,  §  24,  Judicial  Code." 

Venue. 

Under  the  bankruptcy  act. 

**  For  Annotation  of  this  §  256,  Judicial  Code,  see  footnote  »,  ante,  our 
S  192. 

x  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *».  ante,  our  §  194. 
r  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  '».  ante,  our  §  194. 
•  For  Annotation  of  this  §  256,  Judicial  Code,  see  footnote  a.  ante,  our  §  192. 
a  For  Annotation  of  this  §  24.  Judicial  Code,  see  footnote  *».  ante,  our  §  194. 


244         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  376 

§  376.  Claims  against  the  United  States. 
Original. 

Suld.  Twentieth,  §  24,  Judicial  Code*  36  Stat.  at  L. 
1091,  Comp.  St.  1911,  p.  138,  1912  Supp.  F.  S.  A.  v.  1,  p. 
138.  "Concurrent  with  the  court  of  claims,  of  all  claims 
not  exceeding  ten  thousand  dollars  founded  upon  the  Con- 
stitution of  the  United  States  or  any  law  of  Congress,  or 
upon  any  regulation  of  an  Executive  Department,  or  upon 
any  contract,  express  or  implied,  with  the  government  of  the 
Tinted  States,  or  for  damages,  liquidated  or  unliquidated,  in 
cases  not  sounding  in  tort,  in  respect  to  which  claims  the 
party  would  be  entitled  to  redress  against  the  United  States, 
either  in  a  court  of  law,  equity,  or  admiralty,  if  the  United 
States  were  suable,  and  of  all  set-offs,  counterclaims,  claims 
for  damages,  whether  liquidated  or  unliquidated,  or  other  de- 
mands whatsoever  on  the  part  of  the  government  of  the 
United  States  against  any  claimant  against  the  government 
in  said  court:  Provided,  however,  That  nothing  in  this  para- 
graph shall  be  construed  as  giving  to  either  the  district  courts 
or  the  court  of  claims  jurisdiction  to  hear  and  determine 
claims  growing  out  of  the  late  Civil  War,  and  commonly 
known  as  "war  claims,"  or  to  hear  and  determine  other 
claims  which  had  been  rejected  or  reported  on  adversely  prior 
to  the  third  day  of  March,  eighteen  hundred  and  eighty-seven, 
by  any  court,  department,  or  commission  authorized  to  hear 
and  determine  the  same,  or  to  hear  and  determine  claims  for 
pensions;  or  as  giving  to  the  district  courts  jurisdiction  of 
cases  brought  to  recover  fees,  salary,  or  compensation  for 
official  services  of  officers  of  the  United  States,  or  brought 
for  such  purpose  by  persons  claiming  as  such  officers  or  as 
assignees  or  legal  representatives  thereof;  but  no  suit  pend- 
ing on  the  twenty-seventh  day  of  June,  eighteen  hundred  and 
ninety-eight,  shall  abate  or  be  affected  by  this  provision : 
And  provided  further,  That  no  suit  against  the  government 
of  the  United  States  shall  be  allowed  under  this  paragraph 
unless  the  same  shall  have  been  brought  within  six  years  after 
the  right  accrued  for  which  the  claim  is  made:  Provided, 
That  the  claims  of  married  women,  first  accrued  during  mar- 
riage, of  persons  under  the  age  of  twenty-one  years,  first 
accrued  during  minority,  and  of  idiots,  lunatics,  insane  per- 
sons, and  persons  beyond  the  seas  at  the  time  the  claim  ac- 
crued, entitled  to  the  claim,  shall  not  be  barred  if  the  suit 

*»  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  b,  ante,  our  §  104. 


245 

be  brought  within  three  years  after  the  disability  has  ceased ; 
but  no  other  disability  than  those  enumerated  shall  prevent 
any  claim  from  being  barred,  nor  shall  any  of  the  said 
disabilities  operate  cumulatively.  All  suits  brought  and 
tried  under  the  provisions  of  this  paragraph  shall  be  tried 
by  the  court  without  a  jury." 

Exclusive. 

The  United  States  cannot  be  sued  without  its  consent. 

Amount. 

Less  than  $10,000. 

§  377.  Unlawful  Inclosure  Public  Lands. 

Original. 

Subd.  Twenty-first,  §  24,  Judicial  Code,0  36  Stat.  at  L. 
1091,  Comp.  St.  1911,  p.  139,  1912  Supp.  F.  S.  A.  v.  1,  p. 
138.  "Of  proceedings  in  equity,  by  writ  of  injunction,  to 
restrain  violations  of  the  provisions  of  laws  of  the  United 
States  to  prevent  the  unlawful  inclosure  of  public  lands ;  and 
it  shall  be  sufficient  to  give  the  court  jurisdiction  if  service 
of  original  process  be  had  in  any  civil  proceeding  on  any 
agent  or  employee  having  charge  or  control  of  the  inclosure." 

Exclusive. 

The  act  authorizing  the  bringing  of  these  suits  provides  for 
bringing  same  in  United  States  district  courts,  hence  would  not 
be  brought  in  state  court,  and  therefore  could  not  be  removed 
from  a  state  court. 

Amount. 

!Nrot  material  under  last  part  subd.  first,  §  24,  Judicial  Code.* 

Venue. 

The  district  where  the  land  lies,  and  if  in  two  districts  may 

«  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  b,  ante  our  §  194. 
d  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  b,  ante,  our  §  1!)4. 


246         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  379 

be  brought  in  either  district  under  §  55,  Judicial  Code,  and  if 
defendant  resides  in  a  different  district  in  the  same  state,  process 
may  be  directed  against  him  under  §  54  of  the  Judicial  Code. 

§  378.  Immigration  and  Contract  Labor  Laws. 

Original. 

Subd.  Twenty-second,  §  24,  Judicial  Code*  36  Stat.  at  L. 
1091,  Comp.  St.  1911,  p.  139,  1912  Supp.  F.  S.  A.  v.  1,  p. 
138.  "Of  all  suits  and  proceedings  arising  under  any  law 
regulating  the  immigration  of  aliens,  or  under  the  contract 
labor  laws." 

Removal. 

PL  §  28,  Judicial  Code,*  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  140,  1912  Supp.  F.  8.  A.  v.  1,  p.  144.  "Any  suit  of 
a  civil  nature,  at  laAv  or  in  equity,  arising  under  the  laws  of 
the  United  States  ...  of  which  the  district  courts  of 
the  United  States  are  given  original  jurisdiction  by  this  title, 
which  may  now  be  pending  or  which  may  hereafter  be 
brought  in  any  state  court,  may  be  removed  by  the  defend- 
ant or  defendants  therein  to  the  district  court  of  the  United 
States  for  the  proper  district." 

Amount. 

Not  material  under  last  part  of  subd.  first,  §  24,  Judicial  Code. 

Venue. 

In  the  district  whereof  defendant  is  an  inhabitant  under  §  51, 
Judicial  Code,  unless  there  are  several  defendants  residing  in 
different  districts  in  the  same  state  or  different  divisions  in  the 
same  district,  when  the  action  will  be  in  any  such  district  or 
division  under  §§  52,  53,  Judicial  Code. 

§  379.  Trade  Restraints  and  Monopolies. 

Original. 

Subd.  Twenty-third,  §  24,  Judicial  Code,s  36  Stat.  at  L. 
1091,  Comp.  St.  1911,  p.  139,  1912  Supp.  F.  S.  A.  v.  1,  p. 

*  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»,  ante,  our  §194. 

*  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  c,  ante,  our  §  221. 
K  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  t»,  ante,  our  §  194. 


§    380       DISTRICT    COURTS JURISDICTION,    AMOUNT,    VENUE          247 

138.  "Of  all  suits  and  proceedings  arising  under  any  law  to 
protect  trade  and  commerce  against  restraints  and  monop- 
olies." 

Exclusive. 

Loewe  v.  Lawler,  130  Fed.  633. 

Amount. 

§  11,  Act  Aug.  27,  1894,  ch.  349,  28  Stat.  at  L.  570, 
Comp.  St.  1901,  p.  3203,  7  F.  8.  A.  347,  §  7,  Act  July  2, 
1890,  ch.  647,  26  Stat.  at  L.  209,  Comp.  St.  1901,  p.  3202, 
7  F.  S.  A.  344-  "Damage  suit  may  be  brought  without  re- 
spect to  the  amount  in  controversy." 

Venue. 

§  75,  Act  1894,  above  cited,  and  §  5,  Act  1890,  above  cit- 
ed. When  "the  ends  of  justice  require  that  other  parties 
should  be  brought  before  the  court,  the  court  may  cause  them 
to  be  summoned,  whether  they  reside  in  the  district  in  which 
the  court  is  held  or  not." 

§  77,  Act  1894,  above  cited,  §  7 ' ,  Act  1890,  above  cited. 
".  .  .  in  the  district  in  which  the  defendant  resides  or 
is  found.  .  ^  ." 

§  380.  Indian  Land  Allotment. 

Original. 

.  Subd.  Twenty-fourth,  §  24,  Judicial  Code,1  36  Stat.  at  L. 
1091,  Comp.  St.  1911,  p.  139,  1912  Supp.  F.  S.  A.  v.  1,  p. 
138.  "Of  all  actions,  suits,  or  proceedings  involving  the 
right  of  any  person,  in  whole  or  in  part  of  Indian  blood  or 
descent,  to  any  allotment  of  land  under  any  law  or  treaty." 

Procedure. 

§  2,  Act  Feb.  6,  1901,  ch.  217,  Amending  Act  Aug.  15, 
1894,  ch.  290,  31  Stat.  at  L.  760;  Penal  Code',  §  5807,  3  F.  S. 
A.  504-  "(Service  of  petition — district  attorney  to  repre- 
sent government — failure  to  plead — claim  to  be  established 
by  proof.)  That  the  plaintiff  shall  cause  a  copy  of  his  pe- 
tition filed  under  the  preceding  section  to  be  served  upon  the 

•  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *»,  ante,  our  §  194. 


248         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  381 

district  attorney  of  the  United  States  in  the  district  wherein 
suit  is  brought,  and  shall  mail  a  copy  of  same,  by  registered 
letter,  to  the  Attorney  General  of  the  United  States,  and  shall 
thereupon  cause  to  be  filed  with  the  clerk  of  the  court  wherein 
suit  is  instituted  an  affidavit  of  such  service  and  the  mailing 
of  such  letter.  It  shall  be  the  duty  of  the  district  attorney 
upon  whom  service  of  petition  is  made  as  aforesaid  to  appear 
and  defend  the  interests  of  the  government  in  the  suit,  and 
within  sixty  days  after  the  service  of  petition  upon  him,  un- 
less the  time  should  be  extended  by  order  of  the  court  made 
in  the  case  to  file  a  plea,  answer,  or  demurrer  on  the  part 
of  the  government,  and  to  file  a  notice  of  any  counterclaim, 
set-off,  claim  for  damages,  or  other  demand  or  defense  what- 
soever of  the  government  in  the  premises:  Provided,  That 
should  the  district  attorney  neglect  or  refuse  to  file  the 
plea,  answer,  demurrer,  or  defense,  as  required,  the  plain- 
tiff may  proceed  with  the  case  under  such  rules  as  the  court 
may  adopt  in  the  premises;  but  the  plaintiff  shall  not  have 
judgment  or  decree  for  his  claim,  or  any  part  thereof,  unless 
he  shall  establish  the  same  by  proof  satisfactory  to  the  court." 

§  381.  Partition  Suits.    United  States  a  Party. 

Original. 

Subd.  Twenty-fifth,  §  24,  Judicial  Code*  36  Stat.  at  L. 
1091,  Comp.  St.  1911,  p.  139,  1912  Supp.  F.  8.  A.  v.  1,  p. 
138.  "Of  suits  in  equity  brought  by  any  tenant  in  common 
or  joint  tenant  for  the  partition  of  lands  in  cases  where  the 
United  States  is  one  of  such  tenants  in  common  or  joint 
tenants,  such  suits  to  be  brought  in  the  district  in  which 
such  land  is  situate." 

Removal. 

Pt.  §  28,  Judicial  Code*  36  Stat.  at  L.  1094,  Comp.  St. 
1911,  p.  140,  1912  Supp.  F.  S.  A.  v.  1,  p.  144-  "Any  suit  of 
a  civil  nature,  at  law  or  in  equity,  arising  under  the 
laws  of  the  United  States  ...  of  which  the  district 
courts  are  given  original  jurisdiction  by  this  title,  which 
may  now  be  pending  or  which  may  hereafter  be  brought  in 
any  state  court,  may  be  removed  by  the  defendant  or  de- 
fendants therein  to  the  district  court  of  the  United  States 
for  the  proper  district." 

J  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  »»,  ante,  our  §  194. 
fc  For  Annotation  of  this  §  28,  Judicial  Code,  see  footnote  c,  ante,  our  §  221. 


381       DISTRICT   COURTS JURISDICTION,   AMOUNT,   VENUE         249 

Amount. 

Xot  material  under  last  part  subd.  first,  §  24,  Judicial  Code.1 

Venue. 

PL  Subd.  Twenty-fifth,  §  24,  Judicial  Code,™  86  Stat.  at 
L.  1091,  Comp.  St.  1911,  p.  139, 1912  Supp.  F.  S.  A.  v.  1,  p. 
138.  ".  .  .  such  suits  to  be  brought  in  the  district  in 
which  the  land  is  situate." 

Procedure. 

§  2,  Act  May  11,  1898,  cli.  339,  30  Stat.  at  L.  416,  1 
Comp.  Stat.  1901,  p.  516,  5  F.  S.  A.  405.  "(Procedure- 
service  of  process — appearance — pleading — purchase  by 
United  States.)  That  when  such  suit  is  brought  by  any  per- 
son owning  an  undivided  interest  in  such  land,  other  than  the 
United  States,  against  the  United  States  alone  or  against  the 
United  States  and  any  other  of  such  owners,  service  shall  be 
made  on  the  United  States  by  causing  a  copy  of  the  bill  filed 
to  be  served  upon  the  district  attorney  of  the  district  where- 
in the  suit  is  brought,  and  by  mailing  a  copy  of  the  same  by 
registered  letter  to  the  Attorney  General  of  the  United  States ; 
and  the  complainant  in  such  bill  shall  file  with  the  clerk  of 
the  court  in  which  such  bill  is  filed  an  affidavit  of  such 
service  and  of  the  mailing  of  such  letter.  It  shall  be  the 
duty  of  the  district  attorney  upon  whom  service  of  the  bill 
is  made  as  aforesaid  to  appear  and  defend  the  interests  of  the 
government,  and  within  sixty  days  after  service  upon  him  as 
hereinabove  prescribed,  unless  the  time  shall  be  enlarged  by 
order  of  the  court  made  in  the  case,  to  file  a  plea,  answer,  or 
demurrer  on  the  part  of  the  government,  and  the  cause  shall 
proceed  as  other  cases  for  partition  by  courts  of  equity,  and 
in  making  such  partition  the  court  shall  be  governed  by  the 
same  principles  of  equity  that  control  courts  of  equity  in 
partition  proceedings  between  private  persons.  Whenever  in 
such  suit  the  court  shall  order  a  sale  of  the  property  or  any 
part  thereof  the  Attorney  General  of  the  United  States  may, 
in  his  discretion,  bid  for  the  same  in  behalf  of  the  United 
States.  If  the  United  States  shall  be  the  purchaser,  the 
amount  of  the  purchase  money  shall  be  paid  from  the 
Treasury  of  the  United  States  upon  a  warrant  drawn  by  the 
Secretary  of  the  Treasury  on  the  requisition  of  the  Attorney 
General." 

1  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  *>,  ante  our  §  104. 
m  For  Annotation  of  this  §  24,  Judicial  Code,  see  footnote  b,  ante,  our  §  104. 


CHAPTER  13. 

STATUTES  OF  LIMITATIONS. 

Sec. 

390.  In  General. 

391.  Capital  Offenses. 

392.  Offenses  Not  Capital. 

393.  Unless  Fleeing  from  Justice. 

394.  Crimes   under   Revenue  and   Slave-Trade  Laws. 

395.  Crimes  under  Internal  Revenue  Laws. 

396.  Seduction  of  Female  Passengers  on  Vessels. 

397.  Violation  of  Naturalization   Laws. 

398.  Penalties  and  Forfeitures  under  Federal  Laws. 

399.  Penalties  and  Forfeitures  under  Customs  Revenue  Laws. 

400.  Settlements  for  Customs  Duties. 

401.  Forfeiture  or  Penalty  under  Copyright  Laws. 

402.  Forfeiture  and  Damage  Suits  for  False  Claims  against  United  States. 

403.  Claims  against  United  States. 

404.  Recovery   of  Taxes   Wrongfully   Collected. 

405.  Suits  by  United  States  to  Vacate   Land   Patents. 

406.  Suits  by  United  States  to  Vacate  Railway  or  Wagon  Road  Patents. 

407.  Suits  by  Patentee  of  Lands  Patented  to  Indians. 

408.  Under  Employers'  Liability  Act. 

409.  Action  for  Neglect  to  Prevent  Conspiracy  against  Civil  Rights. 

410.  Infringement  of  Patent. 

411.  Infringement  of  Copyrights. 

412.  Stockholders'  Liability  of  Stockholders'  National  Banks. 

413.  Interstate  Commerce  Act. 

§  390.  In  General.  Unless  a  Federal  statute  of  limitations 
is  prescribed  for  the  particular  suit,  the  state  statute  of  limitations 
of  the  state  in  which  the  district  lies  will  govern  under  §  721,  R.  S., 
quoted  next  below.1 

1  Michigan  Insurance  Bank  v.  Eldred,  130  U.  S.  696.  32  L.  ed.  1081, 
9  Sup.  Ct.  Rep.  691;  Davio  v.  Bripgs.  07  U.  S.  637.  24  L.  ed.  1089;  Elmendorf 
v.  Taylor,  10  Wheat.  176,  6  L.  ed.  28!);  Campbell  v.  City  of  Haverhill,  155 
U.  S.  615,  39  L.  ed.  280,  15  Sup.  Ct.  Rep.  217;  Lewis*  v.  Lewis,  7  How. 
776,  12  L.  ed.  909:  Pond  v.  United  States,  111  Fed.  989,  49  C.  C.  A.  582; 
Butler  v.  Pool,  44  Fed.  586,  and  other  cases  cited  in  Rose's  Code  §  10,  page 
89.  and  4  F.  S.  A.  p.  523. 

250 


§    394:  STATUTES  OF  LIMITATIONS  251 

§  121,  R  8.,  Comp.  St.  1901,  p.  581,  4  F.  8.  A.  517. 
"The  laws  of  the  several  states,  except  where  the  Constitu- 
tion, treaties,  or  statutes  of  the  United  States  otherwise  re- 
quire or  provide,  shall  be  regarded  as  rules  of  decision  in 
trials  at  common  law,  in  the  courts  of  the  United  States,  in 
cases  where  they  apply." 

Special  limitations  for  crimes  and  offenses  are  set  out  in  §§ 
391-2-3-4—5-6-7,  infra,  for  penalties  and  forfeitures  in  §§  398, 
399,  401,  402,  infra;  suits  against  the  United  States,  §§  403-4, 
•infra ;  actions  respecting  land  patents  §§  405—6—7,  infra,  and  per- 
sonal actions,  §§  408,  409,  410,  411,  412,  infra. 

§  391.  Capital  Offenses. 

§  1043,  R.  8.,  Comp.  St.  1901,  p.  725,  Rose's  Code,  §  884, 
2  F.  8.  A.  358.  "No  person  shall  be  prosecuted,  tried  or 
punished  for  treason  or  other  capital  offense,  wilful  murder 
excepted,  unless  the  indictment  is  found  within  three  years 
next  after  such  treason  or  capital  offense  is  done  or  com- 
mitted." 

§  392.  Offenses  Not  Capital. 

§  1044,  R-  8.,  Comp.  St.  1901,  p.  725,  Rose's  Code,  §  885, 
2  F.  8.  A.  358.  "No  person  shall  be  prosecuted,  tried,  or 
punished  for  any  offense,  not  capital,  except  as  provided  in 
section  one  thousand  and  forty-six  (R.  S.)  unless  the  indict- 
ment is  found,  or  the  information  is  instituted  within  three 
years  next  after  such  offense  shall  have  been  committed.  But 
this  act  shall  not  have  effect  to  authorize  the  prosecution, 
trial  or  punishment  for  any  offense,  barred  by  the  provisions 
of  existing  laws.". 

§  393.  Unless  Fleeing  from  Justice. 

§  1045,  R.  8.,  Comp.  St.  1901,  p.  726,  Rose's  Code,  §  886, 
2F.S.A.360.  "(Fleeing  from  justice.)  Nothing  in  the  two 
preceding  sections  shall  extend  to  any  person  fleeing  from 
justice." 

§  394.  Crimes  under  Revenue  and  Slave-Trade  Laws. 

§  1046,  R.  8.,  Comp.  St.  1901,  p.  726,  Rose's  Code,  §  888, 
2  F.  8.  A.  36.  "No  person  shall  be  prosecuted,  tried,  or 


252         MONTGOMERY'S  MAMUAL  OF  FEDERAL  PROCEDURE     §  397 

punished  for  any  crime  arising  under  the  revenue  laws,  or 
the  slave-trade  laws  of  the  United  States,  unless  the  indict- 
ment is  found  or  the  information  is  instituted  within  five 
years  next  after  the  committing  of  such  crime." 

§  395.  Crimes  under  Internal  Revenue  Laws. 

§  1,  Act  July  5,  1884,  ch.  225,  23  Stat.  at  L.  122,  Coinp. 
St.  1901,  p.  726,  3  F.  8.  A.  806,  Rose's  Code,  §  889.  "That 
no  person  shall  be  prosecuted,  tried,  or  punished  for  any  of 
the  various  offenses  arising  under  the  internal  revenue  laws 
of  the  United  States  unless  the  indictment  is  found  or  the  in- 
formation instituted  within  three  years  next  after  the  com- 
mission of  the  offense,  in  all  cases  where  the  penalty  pre- 
scribed may  be  imprisonment  in  the  penitentiary,  and  within 
two  years  in  all  other  cases :  Provided,  That  the  time  during 
which  the  person  committing  the  offense  is  absent  from  the 
district  wherein  the  same  is  committed  shall  not  be  taken  as 
any  part  of  the  time  limited  by  law  for  the  commencement 
of  such  proceedings :  Provided  further,  That  the  provisions 
of  this  act  shall  not  apply  to  offenses  committed  prior  to  its 
passage :  And  provided  further,  That  where  a  complaint  shall 
be  instituted  before  a  commissioner  of  the  United  States 
within  the  period  above  limited,  the  time  shall  be  extended 
until  the  discharge  of  the  grand  jury  at  its  next  session  within 
the  district:  And  provided  further,  That  this  act  shall  not 
apply  to  offenses  committed  by  officers  of  the  United  States." 

§  396.  Seduction  of  Female  Passengers  on  Vessels. 

Pt.  §  281,  Penal  Code,  Com  p.  St.  191 1,  p.  1673,  1909 
Supp.  F.  S.  A.  483.  ".  .  .  Xo  conviction  shall  be  had  on 
the  testimony  of  the  female  seduced,  without  other  evidence,, 
nor  unless  the  indictment  is  found  within  one  year  after  the 
arrival  of  the  vessel  on  which  the  offense  was  committed  at 
the  port  for  which  it  was  destined." 

§  397.  Violation  of  Naturalization  Laws. 

§  24,  Act  June  29,  1906,  ch.  3592,  34  Stat.  at  L.  60S, 
Rose's  Code,  §  891,  Comp.  St.  1911,  p.  539,  1909  Supp.  F. 
8.  A.  375.  (Limit  for  prosecutions.)  "That  no  person  shall 
be  prosecuted,  tried,  or  punished  for  any  crime  arising  under 
the  provisions  of  this  act  unless  the  indictment  is  found  or  the 
information  is  filed  within  five  years  next  after  the  com- 
mission of  such  crime." 


§    400  STATUTES  OF  LIMITATIONS  253 

§  398.  Penalties  and  Forfeitures  under  Federal  Laws. 

§  1047,  R.  8.,  Comp.  St.  1901,  p.  721,  Rose's  Code,  §  881, 
3  F.  S.  A.  100.  "No  suit  or  prosecution  for  any  penalty  or 
forfeiture,  pecuniary  or  otherwise,  accruing  under  the  laws 
of  the  United  States,  shall  be  maintained,  except  in  cases 
where  it  is  otherwise  specially  provided,  unless  the  same  is 
commenced  within  five  years  from  the  time  when  the  penalty 
or  forfeiture  accrued:  Provided,  That  the  person  of  the 
offender,  or  the  property  liable  for  such  penalty  or  forfeiture, 
shall,  within  the  same  period,  be  found  within  the  United 
States ;  so  that  the  proper  process  therefor  may  be  instituted 
and  served  against  such  person  or  property."  8 

§  399.  Penalties  and  Forfeitures  under  Customs  Revenue 
Laws. 

§  22,  Act  June  22, 1874,  ch.  391,18  Stat.  at  L.  190,  Comp. 
St.  1901,  p.  121,  Roses  Code,  §  882,  2  F.  8.  A.  761.  "That 
no  suit  or  action  to  recover  any  pecuniary  penalty  or  forfeit- 
ure of  property  accruing  under  the  customs  revenue  laws  of 
the  United  States  shall  be  instituted  unless  such  suit  or  action 
shall  be  commenced  within  three  years  after  the  time  when 
such  penalty  or  forfeiture  shall  have  accrued :  Provided,  That 
the  time  of  the  absence  from  the  United  States  of  the  person 
subject  to  such  penalty  or  forfeiture,  or  of  any  concealment 
or  absence  of  the  property,  shall  not  be  reckoned  within  this 
period  of  limitation." 

§  400.  Settlements  for  Customs  Duties. 

§  21,  Act  June,  22, 1874,  ch.  391,  18  Stat.  at  L.  190,  Comp. 
St.  1901,  p.  1986,  Rose's  Code,  §  87,5,  2  F.  8.  A.  760.  "That 
whenever  any  goods,  wares,  and  merchandise  shall  have  been 
entered  and  passed  free  of  duty,  and  whenever  duties  upon 
any  imported  goods,  wares,  and  merchandise  shall  have  been 
liquidated  and  paid,  and  such  goods,  wares,  and  merchandise 
shall  have  been  delivered  to  the  owner,  importer,  agent,  or 
consignee,  such  entry  and  passage  free  of  duty  and  such  settle- 
ment of  duties  shall,  after  the  expiration  of  one  year  from 
the  time  of  entry,  in  the  absence  of  fraud  and  in  the  absence 

2  See  4  F.  S.  A.  865,  United  States  v.  Smith,  etc.,  Co.,  184  Fed.  532; 
United  States  v.  Guest.  143  Fed.  456,  74  C.  C.  A.  590;  Carter  v.  New  Orleans, 
143  Fed.  99,  74  C.  C.  A.  293;  United  States  v.  Witteman  152  Fed.  377.  81 
C.  C.  A.  503;  City  of  Atlanta  v.  Chattan.  Foundry  Wks.,  101  Fed.  900; 
United  States  v.  One  Dark  Bay  Horse,  130  Fed.  240. 


254         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  403 

of  protest  by  the  owner,  importer,  agent,  or  consignee,  be 
final  and  conclusive  upon  all  parties." 

§  401.  Forfeiture  or  Penalty  under  Copyright  Laws. 

§  4968,  R.  8.,  Comp.  St.  1901,  p.  3416,  Rose's  Code,  § 
871,  2  F.  8.  A.  271.  "No  action  shall  be  maintained  in  any 
case  of  forfeiture  or  penalty  under  the  copyright  laws,  unless 
the  same  is  commenced  within  two  years  after  the  cause  of 
action  has  arisen." 

§  402.  Forfeitures  and  Damage  Suits  for  False  Claims 
against  United  States. 

§  3494,  R.  S.t  Comp.  St.  1901,  2329,  Rose's  Code,  §  883, 
2  F.  S.  A.  31.  "Every  such  suit  shall  be  commenced  within 
six  years  from  the  commission  of  the  act,  and  not  afterward." 

Prosecutions  for  enforcing  punishment  by  fine  or  imprisonment 
under  §  5438,  R.  S.,  are  governed  by  the  limitations  imposed  by 
the  32d 'section  of  the  act,  April  20,  1790,  1  Stat.  at  L.  119;  14 
Op.  Atty.  Gen.  54. 

§  403.  Claims  against  United  States. 

§  156,  Judicial  Code,11  36  Stat.  at  L.  1139,  Comp.  St. 
19 11,  p.  202,  1912  Supp.  F.  S.  A.  v.  1,  p.  204,  36  Stat.  at  L. 
1139.  "Every  claim  against  the  United  States,  cognizable  by 
the  court  of  claims,  shall  be  forever  barred,  unless  the  petition 
setting  forth  a  statement  thereof  is  filed  in  the  court,  or  trans- 
mitted to  it  by  the  secretary  of  the  Senate  or  the  clerk  of  the 
House  of  Representatives,  as  provided  by  law,  within  six 
years  after  the  claim  first  accrues :  Provided,  That  the  claims 
of  married  women  first  accrued  during  marriage,  of  persons 
under  the  age  of  twenty-one  years,  first  accrued  during  mi- 
nority, and  of  idiots,  lunatics,  insane  persons,  and  persons  be- 
yond the  seas  at  the  time  the  claim  accrued,  entitled  to  the 
claim,  shall  not  be  barred  if  the  petition  be  filed  in  the 
court  or  transmitted,  as  aforesaid,  within  three  years  after 
the  disability  has  ceased;  but  no  other  disability  than  those 

»  Re-enacting  §  1069,  R.  S.,  Rose's  Code,  §  874,  Foster's  Fed.  Prac.  (4th  ed.) 
p.  1703,  Comp.  St.  1901,  p.  740.  2  F.  S.  A.  65.  which  section  is  repealed  by 
§  297,  Judicial  Code.  In  general,  Cherokee  Nation  &  United  States  v.  Whit- 
mire,  223  U.  S.  108,  56  L.  ed.  370,  32  Sup.  Ct.  Rep.  200. 


405  STATUTES  OF  LIMITATIONS  255 

enumerated  shall  prevent  any  claim  from  being  barred,  nor 
shall  any  of  the  said  disabilities  operate  cumulatively." 

See  also  subd.  twentieth,  §  24,  Judicial  Code  quoted  as 
§  194. 

§  404.  Recovery  of  Taxes  Wrongfully  Collected. 

§  3227,  R.  S.,  Comp.  St.  1901,  p.  2089,  Rose's  Code,  § 

876,  3  F.  8.  A.  603.    "No  suit  or  proceeding  for  the  recovery 
of  any  internal  tax  alleged  to  have  been  erroneously  or  il- 
legally assessed  or  collected,   or  of  any  penalty  alleged  to 
have  been  collected  without  authority,  or  of  any  sum  alleged 
to  have  been  excessive  or  in  any  manner  wrongfully  collected, 
shall  be  maintained  in  any  court,  unless  the  same  is  brought 
within  two  years  next  after  the  cause  of  action   accrued: 
Provided,  That  actions  for  such  claims  which  accrued  prior 
to  June  6,  1872,  may  be  brought  within  one  year  from  said 
date ;  and  that  where  any  such  claim  was  pending  before  the 
Commissioner,  as  provided  in  the  preceding  section,  an  action 
thereon  may  be  brought  within  one  year  after  such  decision, 
and  not  after.     But  no  right  of  action  which  was  already 
barred  by  any  statute  on  the  said  date  shall  be  revived  by  this 
section." 

§  3228,  R.  8.,  Comp.  St.  1901,  p.  2089,  Rose's  Code,  § 

877,  3  F.  S.  A.  603.     "All  claims  for  the  refunding  of  any 
internal  tax  alleged  to  have  been  erroneously  or  illegally  as- 
sessed or  collected,  or  of  any  penalty  alleged  to  have  been 
collected  without  authority,  or  of  any  sum  alleged  to  .have 
been  excessive  or  in  any  manner  wrongfully  collected,  must 
be  construed  to  revive  any  right  of  action  which  was  already 
in  two  years  next  after  the  cause  of  action  accrued :  Pro- 
vided, That  claims  which   accrued  prior  to  June  6,   1872, 
may  be  presented  to  the  Commissioner  at  any  time  within 
one  year  from  said  date.     But  nothing  in  this  section  shall 
be  construed  to  revive  any  right  of  action  which  was  already 
barred  by  any  statute  on  that  date." 

§  405.  Suits  by  United  States  to  Vacate  Land  Patents. 
Pt.  §  8,  Act  March  3.  1891,  ch.  561,  26  Stat.  at  L.  1099 
(1093}  Comp.  St.  1901,  p.  1521,  Roses  Code,  §  878,  6  F.  S. 
A.  526.  "That  suits  by  .the  United  States  to  vacate  and  annul 
any  patent  to  lands  heretofore  erroneously  issued  under  a 
railroad  or  wagon  road  grant  shall  only  be  brought  within 


256         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  407 

five  years  from  the  passage  of  this  act,  and  suits  to  vacate 
and  annul  patents  hereafter  issued  shall  only  be  brought 
within  six  years  after  the  date  of  the  issuance  of  such  pat- 
ents, and  the  limitation  of  section  eight  of  chapter  five  hun- 
dred and  sixty-one  of  the  acts  of  the  second  session  of  the 
Fifty-first  Congress  and  amendments  thereto  is  extended  ac- 
cordingly as  to  the  patents  herein  referred  to." 

§  406.  Suits  by  United  States  to  Vacate  Railway  or  Wag- 
on Road  Patents. 

§  1,  March  2,  1896,  ch.  39,  29  Stat.  at  L.  42,  Comp.  St. 
1901,  p.  1608,  Rose's  Code,  §  879,  6  F.  8.  A.  449-450.  "That 
suits  by  the  United  States  to  vacate  and  annul  any  patent  to 
lands  heretofore  erroneously  issued  under  a  railroad  or  wag- 
on road  grant  shall  only  be  brought  within  five  years  from 
the  passage  of  this  act,  and  suits  to  vacate  and  annul  patents 
hereafter  issued  shall  only  be  brought  within  six  years  after 
the  date  of  the  issuance  of  such  patents,  and  the  limitation 
of  section  eight  of  chapter  five  hundred  and  sixty-one  of  the 
acts  of  the  second  session  of  the  Fifty-first  Congress  and 
amendments  thereto  is  extended  accordingly  as  to  the  patents 
herein  referred  to.  But  no  patent  to  any  lands  held  by  a 
bona  fide  purchaser  shall  be  vacated  or  annulled,  but  the  right 
and  title  of  such  purchaser  is  hereby  confirmed :  Provided, 
That  no  suit  shall  be  brought  or  maintained,  nor  shall  re- 
covery be  had  for  lands  or  the  value  thereof,  that  were  cer- 
tified or  patented  in  lieu  of  other  lands  covered  by  a  grant 
which  were  lost  or  relinquished  by  the  grantee  in  consequence 
of  the  failure  of  the  government  or  its  officers  to  withdraw 
the  same  from  sale  or  entry." 

§  407.  Suits  by  Patentee  of  Lands  Patented  to  Indians. 
§  l,Act  May  31,  1902,  ch.  946,  32  Stat.  at  L.  284,  Roses 
Code,  §  880,  3F.  S.  A.  504-5.  "That  in  all  actions  brought 
in  any  state  court  or  United  States  court  by  any  patentee,  his 
heirs,  grantees,  or  any  person  claiming  under  such  patentee, 
for  the  possession  or  rents  or  profits  of  lands  patented  in 
severalty  to  the  members  of  any  tribe  of  Indians  under  any 
treaty  between  it  and  the  United  States  of  America,  where  a 
deed  has  been  approved  by  the  Secretary  of  the  Interior  to 
the  land  sought  to  be  recovered,  the  statutes  of  limitations 
of  the  states  in  which  said  land  is  situate  shall  be  held  to 
apply,  and  it  shall  be  a  complete  defense  to  such  action  that 


§    412  STATUTES  OF  LIMITATIONS  257 

the  same  has  not  been  brought  within  the  time  prescribed  by 
the  statutes  of  said  state  the  same  as  if  such  action  had  been 
brought  for  the  recovery  of  land  patented  to  others  than 
members  of  any  tribe  of  Indians." 

§  408.  Under  Employers'  Liability  Act. 

§  6,  Act  April  22,  1908,  ch.  11+9,  35  Stat.  at  L.  66,  Comp. 
St.  1911,  p.  1324,  1909  Supp.  F.  8.  A.  585.  "That  no 
action  shall  be  maintained  under  this  act  unless  commenced 
within  two  years  from  the  day  the  cause  of  action  accrued." 

§  409.  Action  for  Neglect  to  Prevent  Conspiracy  against 
Civil  Rights. 

Pi.  §  1981,  R.  8.,  Comp.  St.  1901,  p.  1263,  Rose's  Code, 
§  872,  1  F.  8.  A.  798.  ".  .  .  But  no  action  under  the 
provision  of  this  section  shall  be  sustained  which  is  not 
commenced  within  one  year  after  the  cause  of  action  has 
accrued." 

§  410.  Infringement  of  Patent. 

PL  §  4921,  R.  8.,  Comp.  St.  1901,  p.  3395,  5  F.  8.  A. 
577.  ".  .  .  .  But  in  any  suit  or  action  brought  for  the 
infringement  of  any  patent,  there  shall  be  no  recovery  of 
profits  or  damages  for  any  infringement  committed  in  the 
six  years  before  the  filing  of  the  bill  of  complaint  or  the 
issuing  of  the  writ  in  such  suit  or  action,  and  this  provision 
shall  apply  to  existing  causes  of  action." 

§  411.  Infringement  of  Copyrights.  Actions  for  infringe- 
ments of  copyrights,3  except  in  a  case  of  forfeiture  or  penalty  un- 
der copyright  laws  governed  by  §  4968,  E.  S.,4  are  governed  by 
state  statutes  of  limitation.6 

§  412.  Liability  of  Stockholders  of  National  Banks. 
Under  §  2  of  the  Act  June  30,  1876,  ch.  156,  19  Stat.  at  L.  63. 
Comp.  St.  1901,  p.  3509,  5  F.  8.  A.  106-7,  Rose's  Code,  964-    This 

3  Patterson    v.    J.    S.    Ogilvie    Publishing  Co.    119    Fed.    451;    Wheeler    v. 
Cohhey,  70  Fed.  487,  under  §  4964,  R.  S. 

4  §  401,  supra. 

5  Rose's  Code,  §  893,  Citing  Brady  v.  Daly,  175  U.  S.  158,  44  L.  ed.  109, 
20  Sup.  Ct.  Rep.  66. 

Montg. — 17. 


258         MONTGOMERY'S  MANUAL  OF  FEDEICAI,  PROCEDTKE     §  413 

action  is  governed  by  the  state  statute  of  limitations,  but  it  docs  not 
begin  to  run  until  the  amount  of  the  stockholders'  liability  has  been 
ascertained  and  assessed  by  the  Comptroller  of  Currency.8 

§  413.  Interstate  Commerce  Act. 

PL  §.16,  Interstate  Commerce  Act,  1912  Supp.  F.  8.  A. 
v.  lf  p.  123.  "A  petition  for  the  enforcement  of  an  order 
for  the  payment  of  money  shall  be  filed  in  the  circuit  (now 
district)  court  or  any  state  court  within  one  year  from  the 
date  of  the  order  and  not  after." 

eRankin  v.  Barton,  199  U.  S.  228,  50  L.  ed.  163,  26  Sup.  Ct.  Rep.  29. 
See  also  McClaine  v.  Rankin,  49  L.  ed.  702,  197  U.  S.  154,  25  Sup.  Ct.  Rep. 
410,  3  Ann.  Gas.  500. 


CHAPTER  14. 

EVIDENCE. 

Sec. 

420.  In  General. 

421.  Statutes  of  United  States — Evidence  of — Little  and  Brown's  Edition. 

422.  Same — Supplement  of  Revised  Statutes. 

423.  Same — Richardson's  Supplement  of  Revised  Statutes. 

424.  Proof  State  and  Foreign  Legislative  Acts  and  State  Court  Records  and 

Proceedings. 

425.  Exemplified   Copies   Records   of   Public   Officers,   Not  Appertaining   to  a 

Court  in  States  and  Territories. 

426.  Copies  of  Foreign  Records  Filed  in  Department  Offices  Relating  to  Land 

Titles  in  United  States. 

427.  Copies — Extracts  from  Journals  of  Congress  Certified. 

428.  Pamphlet  Copies  of  Statutes  and  Bound  Copies  of  Acts. 

429.  Printed  and  Bound  Copies  of  Acts. 

430.  Copies — Lost  or  Destroyed  Judicial  Records. 

431.  Restoration  of  Lost  or  Destroyed  Judicial  Records. 

432.  Copies — Lost  Supreme  Court  Record. 

433.  Restoration  of  Records — Service  of  Notice  on  Nonresidents. 

434.  Copies — Lost  Returns  and  Official  Papers — Judicial  Officers. 

435.  Restoration  of  Records  in  which  United  States  are  Interested  by  United 

States'  Attorneys. 

436.  Copies — Executive  Department  Records,  etc. 

437.  Copies — Solicitor  of  the  Treasury  Records,  etc. 

438.  Copies — Comptroller  of  the  Currency — Records,  etc. 

439.  Copies — National  Bank  Organization  Certificates. 

440.  Copies — Bonds,  Contracts,  and  Other  Papers  of  United  States  in  Settle- 

ment of  Accounts  with  Government. 

441.  Copies — Treasury,  War,  Navy,  Records  in  Suits  against  Delinquents. 

442.  Same — Certification  of  Copies  to  Be  Made  by  Secretary  or  an  Assistant 

Secretary  of  the  Treasury  under  Seal  of  Department. 

443.  Copies   Treasury   Department   Books   and   Proceedings   in   Embezzlement 

Suits. 

444.  Copies — Department  of  the  Interior. 

445.  Copies — Postoffice  Records. 

446.  Copy — Postoffice  Department  Demand  on  Postmasters. 

447.  Copies — Land  Office  Records — Certification  of. 

448.  Subpoena  Duces  Tecum  to  Register  of  Land  Office. 

449.  Copies — Commissioner  of  Indian  Affairs — Certification  of. 

259 


260         MONTGOMKUY'S  MANTAL  OF  FEDERAL  PROCEDURE      §  420 

4.~>n.  Copies — Patent  Office  Records,  Letters  Patent,  otc. 

4.">1.  Copies — Foreign    Letters   Patent. 

4.V2.  Copies — Printed  Copies  of  Specifications  and  Drawings  of  Patents. 

4 :;:{.  Copies — Patent  Office  Records — Trademarks. 

4.~>4.  Copies — United  States  Consular  Records. 

4.").").  Copit-.s — United  States  Clerks'  New  Records    in    Certain    States. 

456.  Copies — United  States  Clerks'  New  Records — North   Carolina. 

4.">7.  Judicial  Notice  Taken  of  the  Seal  of  the  Department  of  Commerce  and 

Labor. 

458.  Burden  of  Proof — Seizure  Cases  under  Customs  Duties  Laws. 

4.1!).  Reports    of    Investigations   of   Accidents    from    Failure   of   Boilers — Not 

Admissible  in  Damage  Suits. 

460.  Government  Paramount  Title  Does  Not  Affect  Possessory  Action  Mining 

Titles. 

461.  Publication  of  Interstate  Commerce  Reports  and  Decisions  as  Evidence. 

462.  Proof  of  Signature  and  Handwriting. 

§  420.  In  General.  Equity  Rule  46  provides  that  "in  all 
trials  in  equity  the  testimony  of  witnesses  shall  be  taken  orally 
in  open  court,  except  as  otherwise  provided  by  statute  or  these 
rules.  The  court  shall  pass  on  the  admissibility  of  all  evidence 
offered  as  in  actions  at  law.  .  .  ." 

§  861,  R.  S.,  provides  that  "the  mode  of  proof  in  the  trials  of 
actions  at  common  law  shall  be  by -oral  testimony  and  by  examina- 
tion of  witnesses  in  open  court,  except  as  hereinafter  provided." 

§  721,  R.  S.,  provides  that,  except  as  otherwise  provided,  the 
laws  of  the  several  states  "shall  be  regarded  as  the  rules  of  de- 
cision in  trials  at  common  law." 

The  last-mentioned  section  has  been  held  to  apply  to  rules 
of  evidence  prescribed  by  the  laws  of  the  state  in  which  the 
Federal  court  was  sitting.1  The  laws  of  the  state  relating  to 
evidence  means  not  only  the  statutes  of  the  state,  but  also  the 
decisions  of  its  highest  courts  respecting  rules  of  evidence,8  but 
not  as  to  common-law  rules  of  evidence.3 

The  decided  tendency  in  both  law  and  equity  is  to  conform 
to  state  rules  of  evidence  as  is  indicated  by  the  new  rule  46, 
above  mentioned,  and  recent  amendment  §  858,  R.  S.,  as  to 
competency  of  witnesses.4 

1  Parker  v.  Moores.  Ill  Fed.  470:  note  4  F.  S.  A.  1st  col.  p.  522. 

2  Nashua    Savings    Bank    v.    Anglo-American    Land    Co.    189    U.    S.    228.    47 
L.  ed  782,  23  Sup.  Ct.  Rep.  517:  note  4  F.  S.  A.  2nd  col.  p.  518. 

3  Union  Pac.  R.  Co.  v.  Yates,  79  Fed.  588,  25  C.  C.  A.  103,  40  L.R.A.  553. 

4  §  470,  infra. 


§    421  EVIDENCE  261 

The  Federal  courts  do  not,  however,  follow  the  state  practice, 
allowing  the  examination  of  a  party  before  trial,5  except  in  order- 
ing a  surgical  examination  of  the  person  of  the  plaintiff  in  an 
action  for  personal  injuries,6  and  not  then  when  there  is  no  state 
statute.7 

Discovery  by  the  production  of  books  and  papers  in  common- 
law  actions  is  governed  by  §  724,  R.  S.,8  and  in  equity  by 
Equity  Rule  58.9 

State  laws  have  been  followed  as  to  printed  copies  of  state 
laws  being  prima  facie  evidence  thereof.10  §  905,  R.  S.,  pro- 
vides for  the  authentication  of  state  laws,11  although  it  has  not 
been  held  mandatory  and  the  statutes  of  Pennsylvania  were  ad- 
mitted in  the  District  of  Columbia,  though  not  so  authenticated.12 

So,  also  the  state  law  was  followed  as  to  exemption  from  process 
of  a  witness  in  attendance  on  court.13 

But  state  laws  will  not  be  followed  wrhere  the  Federal  statutes 
make  other  provisions.14 

This  chapter  contains  a  number  of  special  Federal  statutes  on 
evidence. 

§  421.  Statutes  of  United  States — Evidence  of — Little  and 
Brown's  Edition. 

§  908,  R.  8.,  Comp.  Stat.  1901,  678,  7  F.  8.  A.  138,  Rose's 
Code,  §  1808.  "The  edition  of  the  Laws  and  Treaties  of 
the  United  States,  published  by  Little  &  Brown,  shall  be 
competent  evidence  of  the  several  public  and  private  acts  of 
Congress,  and  of  the  several  treaties  therein  contained,  in  all 
the  courts  of  law  and  equity  and  of  maritime  jurisdiction, 
and  in  all  the  tribunals  and  public  offices  of  the  United 

6  Ex   parte  Fiske,   113  U.   S.   713,  28  L.   ed.   1117,   5   Sup.   Ct.   Rep.   724; 
note  3  F.  S.  A.  1st  col.  p.  7. 

eCamden,  etc.  Ry.  Co.  v.  Stetson,   177  U.  S.   172,  44  L.  ed.  721,  20  Sup. 
Ct.  Rep.  617. 

7  Union   Pac.   etc.   Ry.   Co.  v.   Botsford,   141   U.   S.   250,   35   L.  ed.   734,   11 
Sup.  Ct.  Rep:  1000. 

8  §  711,  infra. 

»  §g  862,  870,  infra. 

10  Beatrice  v.  Edminston,   117   Fed.  427,  54  C.   C.  A.   606. 

11  §  424,  infra. 

12  Conn,  etc.,  Bank  v.  Patterson,  2  Cranch,  346,  Fed.  Cas.  No.  3,056. 

13  Ex  parte  Levi,  28  Fed.  651. 

"Potter  v.  National  Bank,  102  U.  S.  165,  26  L.  ed.  111. 


MONTGOMERY'S  MA.NTAI.  OF  FEDERAL  PROCEDURE      §  424 

States,  and  of  the  several  states,  without  any  further  proof 
or  authentication  thereof." 

§  422.  Same — Supplement  of  Revised  Statutes. 

§  8  of  Act  April  9,  1890,  ch.  73,  26  Stat.  at  L.  50,  Comp. 
Stat.  1901,  p.  2589,  7  F.  S.  A.  139,  Rose's  Code,  §  1810. 
"The  publication  herein  authorized  shall  be  taken  to  be  prima 
facie  evidence  of  the  laws  therein  contained,  but  shall  not 
change  nor  alter  any  existing  law,  nor  preclude  reference  to 
nor  control  in  case  of  any  discrepancy,  the  effect  of  any 
original  act  passed  by  Congress." 

§  423.  Same — Richardson's  Supplement  of  Revised  Stat- 
utes. 

Pt.  Joint  Resolution  June  7,  1880,  No.  44,  21  Stat.  at  L. 
308,  Comp.  Stat.  1901,  p.  2587,  7  F.  S.  A.  139,  Rose's  Code, 
1809.  "The  publication  herein  authorized  shall  be  taken 
to  be  prima  facie  evidence  of  the  laws  therein,  contained  in 
all  the  courts  of  the  United  States,  and  of  the  several  states 
and  territories  therein ;  but  shall  not  preclude  reference  to, 
nor  control,  in  case  of  any  discrepancy,  the  effect  of  any 
original  acts  as  passed  by  Congress:  Provided,  That  nothing 
herein  contained  shall  be  construed  to  change  or  alter  any 
existing  law." 

§  424.  Proof  State  and  Foreign  Legislative  Acts  and  State 
Court  Records  and  Proceedings. 

§  905,  R.  S.,  Comp.  Stat.  1901,  p.  677,  Roses  Code,  § 
1803,  3  F.  S.  A.  37.  "The  acts  of  the  legislature  of  any 
state  or  territory,  or  of  any  country  subject  to  the  jurisdiction 
of  the  United  States,  shall  be  authenticated  by  having  the 
seals  of  such  state,  territory,  or  country  affixed  thereto.  The 
records  and  judicial  proceedings  of  the  courts  of  any  state  or 
territory,  or  of  any  such  country,  shall  be  proved  or  admitted 
in  any  other  court  within  the  United  States,  by  the  attesta- 
tion of  the  clerk,  and  the  seal  of  the  court  annexed,  if  there 
be  a  seal,  together  with  a  certificate  of  the  judge,  chief  jus- 
tice, or  presiding  magistrate,  that  the  said  attestation  is  in 
due  form.  And  the  said  records  and  judicial  proceedings  so 
authenticated  shall  have  such  faith  and  credit  given  to  them 
in  every  court  within  the  United  States  as  they  have  by 
law  or  usage  in  the  courts  of  the  state  from  which  they  are 
taken." 


§426  EVIDENCE  263 

§  425.  Exemplified  Copies  Records  of  Public  Offices,  Not 
Appertaining  to  a  Court  in  States  and  Territories. 

§  906,  R.  8.,  Comp.  Stat.  1901,  p.  677,  3  F.  8.  A.  39, 
Rose's  Code,  §  1804-  "All  records  and  exemplifications  of 
books,  which  may  be  kept  in  any  public  office  of  any  state 
or  territory,  or  of  any  country  subject  to  the  jurisdiction  of 
the  United  States,  not  appertaining  to  a  court,  shall  be 
proved  or  admitted  in  any  court  or  office  in  any  other  state  or 
territory,  or  in  any  such  country,  by  the  attestation  of  the 
keeper  of  the  said  records  or  books,  and  the  seal  of  his  office 
annexed,  if  there  be  a  seal,  together  with  a  certificate  of  the 
presiding  justice  of  the  court  of  the  county,  parish,  or  dis- 
trict in  which  such  office  may  be  kept,  or  of  the  governor  or 
secretary  of  state,  the  chancellor  or  keeper  of  the  great  seal 
of  the  state,  or  territory,  or  country,  that  the  said  attestation 
is  in  due  form,  and  by  the  proper  officers.  If  the  said 
certificate  is  given  by  the  presiding  justice  of  a  court,  it  shall 
be  further  authenticated  by  the  clerk  or  prothonotary  of  the 
said  court,  who  shall  certify,  under  his  hand  and  the  seal 
of  his  office,  that  the  said  presiding  justice  is  duly  commis- 
sioned and  qualified ;  or  if  given  by  such  governor,  secretary, 
chancellor,  or  keeper  of  the  great  seal,  it  shall  be  under  the 
great  seal  of  the  state,  territory,  or  county  aforesaid  in  which 
it  is  made.  And  the  said  records  and  exemplifications,  so 
authenticated,  shall  have  such  faith  and  credit  given  to  them 
in  every  court  and  office  within  the  United  States  as  they 
have  by  law  or  usage  in  the  courts  or  offices  of  the  state, 
territory,  or  country,  as  aforesaid,  from  which  they  are 
taken." 

§  426.  Copies  of  Foreign  Records  Filed  in  Department 
Offices  Relating  to  Land  Titles  in  United  States. 

§  907,  R.  8.,  Comp.  Stat.  1901,  p.  678,  3  F.  8.  A.  40, 
Rose's  Code,  §  1806.  "It  shall  be  lawful  for  any  keeper  or 
person  having  the  custody  of  laws,  judgments,  orders,  de- 
crees, journals,  correspondence,  or  other  public  documents  of 
any  foreign  government  or  its  agents,  relating  to  the  title  to 
lands  claimed  by  or  under  the  United  States,  on  the  appli- 
cation of  the  head  of  one  of  the  departments,  the  Solicitor  of 
the  Treasury,  or  the  Commissioner  of  the  General  Land 
Office,  to  authenticate  copies  thereof  under  his  hand  and  seal, 
and  to  certify  them  to  be  correct  and  true  copies  of  such  laws, 
judgments,  orders,  decrees,  journals,  correspondence,  or  other 


204  MOXTGO.MJCKY'S    MANUAL  OF   FEDERAL   PROCEDURE  429 


public  documents,  respectively;  and  when  such  copies  are 
certified  by  an  American  minister  or  consul,  under  his 
hand  and  seal  of  office,  to  be  true  copies  of  the  originals, 
they  shall  be  sealed  up  by  him  and  returned  to  the  Solicitor 
of  the  Treasury,  who  shall  file  them  in  his  office,  and  cause 
them  to  be  recorded  in  a  book  to  be  kept  for  that  purpose.  A 
copy  of  any  such  law,  judgment,  order,  decree,  journal, 
correspondence,  or  other  public  document,  so  filed,  or  of  the 
same  so  recorded  in  said  book,  may  be  read  in  evidence  in 
any  court,  where  the  title  to  land  claimed  by  or  under  the 
United  States  may  come  into  question,  equally  with  the 
originals." 

§  427.  Copies  —  Extracts  from  Journals  of  Congress  Cer- 
tified. 

§  895,  R.  8.,  Comp.  Stat.  1901,  p.  673,  Rose's  Code,  § 
1198,  3  F.  8.  A.  34.  "Extracts  from  the  journals  of  the 
Senate,  or  of  the  House  of  Representatives,  and  of  the 
Executive  Journal  of  the  Senate  when  the  injunction  of 
secrecy  is  removed,  certified  by  the  secretary  of  the  Senate 
or  by  the  clerk  of  the  House  of  Representatives,  shall  be 
admitted  as  evidence  in  the  courts  of  the  United  States,  and 
shall  have  the  same  force  and  effect  as  the  originals  would 
have  if  produced  and  authenticated  in  court." 

§  428.  Pamphlet  Copies  of  Statutes  and  Bound  Copies  of 
Acts. 

PL  §  73,  Act  Jan.  12,  1895,  ch.  23,  28  Stat.  at  L.  615, 
Comp.  Stat.  1901,  p.  3766,  7  F.  8.  A.  139,  Rose's  Code,  § 
1812.  "The  pamphlet  copies  of  the  statutes  and  the  bound 
copies  of  the  acts  of  each  Congress  shall  be  legal  evidence  of 
the  laws  and  treaties  therein  contained  in  all  the  courts  of 
the  United  States  and  of  the  several  states  therein." 

§  429.  Printed  and  Bound  Copies  of  Acts. 

§  8,  Act  June  20,  1874,  ch.  333,  18  Stat.  at  L.  113,  Comp. 
Stat.  1901,  p.  3757,  7  F.  S.  A.  138,  Rose's  Code,  1811.  ''The 
said  printed  copies  of  the  said  acts  of  each  session  and  of 
the  said  bound  copies  of  the  acts  of  each  Congress  shall  be 
legal  evidence  of  the  laws  and  treaties  therein  contained,  in 
all  the  courts  of  the  United  States  and  of  the  several  states 
therein." 


§    432  EVIDENCE  205 

§  430.  Copies — Lost  or  Destroyed  Judicial  Records. 

§  899,  R.  8.,  Comp.  Stat.  1901,  p.  675,  Rose's  Code,  § 

387,  3  F.  8.  A.  35.     "When  the  record  of  any  judgment, 
decree,    or   other   proceeding  of   any   court  of  the   United 
States  is  lost  or  destroyed,  any  party  or  person  interested 
therein  may,  on  application  to  such  court,  and  on  showing  to 
its  satisfaction  that  the  same  was  lost  or  destroyed  without 
his  fault,  obtain  from  it  an  order  authorizing  such  defect 
to  be  supplied  by  a  duly  certified  copy  of  the  original  record, 
where  the  same  can  be  obtained ;  and  such  certified  copy  shall 
thereafter  have,  in  all  respects,  the  same  effect  as  the  original 
record  would  have  had." 

§  431.  Restoration  of  Lost  or  Destroyed  Judicial  Records. 

§  900,  R.  S.f  Comp.  Stat.  1901,  p.  615,  Rose's  Code,  § 

388,  3  F.  S.  A.  35.    "When  any  such  record  is  lost  or  de- 
stroyed, and  the  defect  cannot  be  supplied  as  provided  in  the 
preceding  section,  any  party  or  person  interested  therein  may 
make  a  written  application  to  the  court  to  which  the  record 
belonged,  verified  by  affidavit,  showing  such  loss  or  destruc- 
tion ;  that  the  same  occurred  without  his  fault  or  neglect ; 
that  certified  copies  of  such  record  cannot  be  obtained  by 
him ;  and  showing  also  the  substance  of  the  record  so  lost  or 
destroyed,  and  that  the  loss  or  destruction  thereof,  unless 
supplied,  will  or  may  result  in  damage  to  him.     The  court 
shall  cause  said  application  to  be  entered  of  record,  and  a 
copy   of   it  shall   be   served   personally   upon   every   person 
interested  therein,  together  with  written  notice  that  on   a 
day  therein  stated,  which  shall  not  be  less  than  sixty  days 
after  such  service,  said  application  will  be  heard ;  and  if, 
upon  such  hearing,  the  court  is  satisfied  that  the  statements 
contained  in  the  application  are  true,  it  shall  make  and  cause 
to  be  entered  of  record  an  order  reciting  the  substance  and 
effect  of  said  lost  or  destroyed  record.     Said  order  shall  have 
the  same  effect,  so  far  as  concerns  the  party  or  person  mak- 
ing such  application  and  the  persons  served  as  above  provid- 
ed,  but   subject   to   intervening   rights,   which   the   original 
record  would  have  had  if  the  same  had  not  been  lost  or  de- 
stroyed." 

§  432.  Copies — Lost  Supreme  Court  Record. 

§  901,  R.  8.,  Comp.  Stat.  1901,  p.  675,  Rose's  Code,  § 

389,  3  F.  8.  A.  35.     "When  anv  cause  has  been-  removed 


266         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  434 

to  the  Supreme  Court,  and  the  original  record  thereof  is 
afterward  lost,  a  duly  certified  copy  of  the  record  remaining 
in  said  court  may  be  filed  in  the  court  from  which  the  cause 
was  removed,  on  motion  of  any  party  or  person  claiming  to 
be  interested  therein;  and  the  copy  so  filed  shall  have  the 
same  effect  as  the  original  record  would  have  had  if  the 
same  had  not  been  lost  or  destroyed." 

§  433.  Restoration  of  Records — Service  of  Notice  on  Non- 
residents. 

§  902,  R.  8.,  Comp.  Stat.  1901,  p.  616,  Rose's  Code,  § 

390,  3  F.  S.  A.  35.    "In  any  proceedings  in  conformity  with 
law  to  restore  the  records  of  any  court  of  the  United  States 
which  have  been  or  may  be  hereafter  lost  or  destroyed,  the 
notice  required  may  be  served  on  any  nonresident  of  the 
district  in  which  such  court  is  held  anywhere  within  the 
jurisdiction  of  the  United  States,  or  in  any  foreign  country ; 
the  proof  of  service  of  such  notice,  if  made  in  a  foreign 
country,  to  be  certified  by  a  minister  or  consul  of  the  United 
States  in  such  country,  under  his  official  seal." 

§  434.  Copies — Lost  Returns  and  Official  Papers — Judicial 
Officers. 

§  903,  R.  8.,  Comp.  Stat.  1901,  p.  676,  Rose's  Code,  § 

391,  3  F.  8.  A.  36.     "A  certified  copy  of  the  official  return, 
or  any  other  official  paper  of  the  United  States  attorney, 
marshal,  or  clerk,  or  other  certifying  or  recording  officer  of 
any  court  of  the  United  States,  made  in  pursuance  of  law, 
and  on  file  in  any  department  of  the  government,  relating  to 
any  cause  or  matter  to  which  the  United  States  was  a  party 
in  any  such  court,  the  record  of  which  has  been  or  may  be  lost 
or  destroyed,  may  be  filed  in  the  court  to  which  it  appertains, 
and  shall  have  the  same  force  and  effect  as  if  it  were  an 
original  report,  return,  paper,  or  other  document  made  to 
or  filed  in  such  court;  and  in  any  case  in  which  the  names 
of  the  parties  and  the  date  and  amount  of  judgment  or  de- 
cree shall  appear  from  such  return,  paper,  or  document,  it 
shall  be  lawful  for  the  court  in  which  they  are  filed  to  issue 
the  proper  process  to  enforce  such  decree  or  judgment,  in 
the  same  manner  as  if  the  original  record  remained  in  said 
court.     And  in  all  cases  where  any  of  the  files,  papers,  or 
records  of  any  court  of  the  United  States  have  been  or  shall 
be  lost  or  destroyed,  the  files,  records,  and  papers  which,  pur- 


§    437  EVIDENCE  267 

suant  to  law,  may  have  been  or  may  be  restored  or  supplied 
in  place  of  such  records,  files,  and  papers,  shall  have  the 
same  force  and  effect,  to  all  intents  and  purposes,  as  the 
originals  thereof  would  have  been  entitled  to." 

§  435.  Restoration  of  Records  in  which  United  States  are 
Interested  by  United  States'  Attorneys. 

§  904,  R-  8.,  Comp.  Stat.  1901,  p.  676,  Rose's  Code,  §§ 
392,  531,  597,  3  F.  8.  A.  36.  "That  whenever  any  of  the 
records  or  files  in  which  the  United  States  are  interested  of 
any  court  of  the  United  States  have  been  or  may  be  lost  or 
destroyed,  it  shall  be  the  duty  of  the  attorney  of  the  United 
States  for  the  district  court  to  which  such  files  and  records 
belong,  so  far  as  the  judges  of  such  courts  respectively  shall 
deem  it  essential  to  the  interests  of  the  United  States  that 
such  records  and  files  to  (sic)  be  restored  or  supplied,  to 
take  such  steps,  under  the  direction  of  said  judges,  as  may  be 
necessary  to  effect  such  restoration  or  substitution,  including 
such  dockets,  indices,  and  other  books  and  papers  as  said 
judge  (s)  shall  think  proper.  Said  judges  may  direct  the 
performance,  by  the  clerks  of  said  courts  respectively  and 
by  the  United  States'  attorneys,  of  any  duties  incident 
thereto;  and  said  clerks  and  attorneys  shall  be  allowed  such 
compensation  for  services  in  the  matter  and  for  lawful  dis- 
bursements as  may  be  approved  by  the  Attorney  General  of 
the  United  States,  upon  a  certificate  by  the  judges  of  said 
courts  stating  that  such  claim  for  services  and  disbursements 
is  just  and  reasonable ;  and  the  sum  so  allowed  shall  be 
paid  out  of  the  judiciary  fund." 

§  436.  Copies — Executive  Department  Records,  etc. 

§  882,  R.  S.,  Comp.  Stat.  1901,  p.  669,  Roses  Code,  § 
.2777,  3  F.  S.  A.  26.  "Copies  of  any  books,  records,  papers, 
or  documents  in  any  of  the  Executive  Departments,  au- 
thenticated under  the  seals  of  such  Departments,  respective- 
ly, shall  be  admitted  in  evidence  equally  with  the  originals 
thereof." 

§  437.  Copies — Solicitor  of  the  Treasury  Records,  etc. 

§  883,  R.  8.,  Comp.  Stat.  1901,  p.  669,  Rose's  Code,  § 
1778,  3  F.  S.  A.  27.  "Copies  of  any  documents,  records, 
books,  or  papers  in  the  office  of  the  solicitor  of  the  Treasury, 
certified  by  him  under  the  seal  of  his  office,  or,  whenever 


MONTGOMERY'S  MANUAL  OF  FEDERAL  PEOCKDI'IIE     §  440 

his  office  is  vacant,  by  the  officer  acting  as  solicitor  for  the 
time,  shall  be  evidence  equally  with  the  originals." 

§  438.  Copies — Comptroller    of    the    Currency— Records, 
etc. 

§  884,  R-  S.,  Comp.  Stat.  1901,  p.  669,  Rose's  Code,  § 
1780,  3  F.  S.  A.  27.  "Every  certificate,  assignment,  and  con- 
veyance executed  by  the  Comptroller  of  the  Currency,  in 
pursuance  of  law,  and  sealed  with  his  seal  of  office,  shall  be 
received  in  evidence  in  all  places  and  courts;  and  all  copies 
of  papers  in  his  office,  certified  by  him  and  authenticated 
by  the  said  seal,  shall  in  all  cases  be  evidence  equally  with 
the  originals.  An  impression  of  such  seal  directly  on  the 
paper  shall  be  as  valid  as  if  made  on  wax  or  wafer." 

§  439.  Copies — National  Bank  Organization  Certificates. 

§  885,  R.  8.,  Comp.  Stat.  1901,  p.  670,  Roses  Code, 
§  17 SI,  3  F.  S.  A.  27.  "Copies  of  the  organization  cer- 
tificate of  any  national  banking  association,  duly  certified  by 
the  Comptroller  of  the  Currency,  and  authenticated  by  his 
seal  of  office,  shall  be  evidence  in  all  courts  and  places  within 
the  jurisdiction  of  the  United  States  of  the  existence  of  the 
association,  and  of  every  matter  which  could  be  proved  by 
the  production  of  the  original  certificate." 

§  440.  Copies — Bonds,   Contracts,   and   Other  Papers  of 
United  States  in  Settlement  of  Accounts  with  Government. 

Ft.  §  886,  R.  S.,  Comp.  Stat.  1901,  p.  670,  PL  Rose's 
Code,  §  1782,  3  F.  S.  A.  27.  ".  .  .  And  all  copies  of 
bonds,  contracts,  or  other  papers  relating  to,  or  connected 
with,  the  settlement  of  any  account  between  the  United  States 
and  an  individual,  when  certified  by  the  register  or  by  such 
auditor,  as  the  case  may  be,  to  be  true  copies  of  the  originals 
on  file,  and  authenticated  under  the  seal  of  the  Department, 
may  be  annexed  to  such  transcripts,  and  shall  have  equal 
validity,  and  be  entitled  to  the  same  degree  of  credit  which 
would  be  due  to  the  original  papers  if  produced  and  authenti- 
cated in  court:  Provided,  That  where  suit  is  brought  upon 
a  bond  or  other  sealed  instrument,  and  the  defendant  pleads 
non  est  fa-ctum,  or  makes  his  motion  to  the  court,  verifying 
such  plea  or  motion  by  his  oath,  the  court  may  take  the 
same  into  consideration,  and,  if  it  appears  to  be  necessary 


§    443  EVIDENCE  269 

for  the  attainment  of  justice,  may  require  the  production 
of  the  original  bond,  contract,  or  other  paper  specified  in 
such  affidavit." 

§  441.  Copies — Treasury,  War,  Navy,  Records  in  Suits 
against  Delinquents. 

Ft.  §  886,  R.  8.,  Comp.  St.  1901,  p.  610,  PL  Rose's  Code, 
§  1782,  3  F.  S.  A.  27.  "When  suit  is  brought  in  any  case 
of  delinquency  of  a  revenue  officer,  or  other  person  account- 
able for  public  money,  a  transcript  from  the  books  and  pro- 
ceedings of  the  Treasury  Department,  certified  by  the  regis- 
ter and  authenticated  under  the  seal  of  the  Department,  or, 
when  the  suit  involves  the  accounts  of  the  War  or  Navy 
Departments,  certified  by  the  auditors  respectively  charged 
with  the  examination  of  those  accounts,  and  authenticated 
under  the  seal  of  the  Treasury  Department,  shall  be  admitted 
as  evidence,  and  the  court  trying  the  cause  shall  be  authorized 
to  grant  judgment  and  award  execution  accordingly.  .  .  ." 

§  442.  Same — Certification  of  Copies  to  be  Made  by  Sec- 
retary or  an  Assistant  Secretary  of  the  Treasury  under  Seal 
of  Department. 

Act  Mar.  2,  1895,  ch.  Ill,  28  Stat.  at  L.  209,  3  F.  S.  A. 
28,  2  F.  8.  A.  211,  Comp.  Stat.  1901,  p.  611,  Roses 
Code,  1183.  "The  transcripts  from  the  books  and  proceed- 
ings of  the  Department  of  the  Treasury  and  the  copies  of 
bonds,  contracts,  and  other  papers  provided  for  in  section 
eight  hundred  and  eighty-six  of  the  Revised  Statutes  shall 
hereafter  be  certified  by  the  Secretary  or  an  Assistant  Secre- 
tary of  the  Treasury  under  the  seal  of  the  Department." 

§  443.  Copies,  Treasury  Department  Books  and  Proceed- 
ings in  Embezzlement  Suits. 

§  881,  R.  8.,  Comp.  Stat.  1901,  p.  611,  Rose's  Code,  § 
1784,  3  F.  S.  A.  30.  "Upon  the  trial  of  any  indictment 
against  any  person  for  embezzling  public  moneys,  it  shall  be 
sufficient  evidence,  for  the  purpose  of  showing  a  balance 
against  such  person,  to  produce  a  transcript  from  the  books 
and  proceedings  of  the  Treasury  Department,  as  provided 
by  the  preceding  section." 


270         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  445 

§  444.  Copies — Department  of  the  Interior. 

§  888,  R.  8.,  Comp.  Stat.  1901,  p.  671,  Rose's  Code,  § 

1785,  3  F.  S.  A.  81.     "A  copy  of  any  return  of  a  contract 
returned  and  filed  in  the  returns-office  of  the  Department 
of  the  Interior,  as  provided  by  law,  when  certified  by  the 
clerk  of  the  said  office  to  be  full  and  complete,  and  when 
authenticated  by  the  seal  of  the  Department,  shall  be  evi- 
dence in  any  prosecution  against  any  officer  for  falsely  and 
corruptly  swearing  to  the  affidavit  required  by  law  to  be 
made  by  such  officer  in  making  his  return  of  any  contract, 
as  required  by  law,  to  said  returns-office." 

Under  Reclamation  Act.  Act  August  9,  1912,  ch.  278,  37 
Stat.  at  L.  267.  ".  .  .  the  Secretary  of  the  Interior  shall 
make  provision  for  furnishing  copies  of  duly  authenticated 
records  of  entries  upon  payment  of  reasonable  fees,  which 
copies  shall  be  admissible  in  evidence,  as  are  copies  authenti- 
cated under  section  eight  hundred  and  eighty-eight  of  the 
Revised  Statutes." 

Copies  of  Records — Department  and  its  Several  Bureaus. 
§§  3  and  4  Act  August  24,  1912,  ch.  370,  37  Stat.  at  L.  p. 
492,  §  3.  That  all  authenticated  copies  furnished  under  this 
act  shall  be  admitted  in  evidence  equally  with  the  originals 
thereof. 

§  4.  That  all  officers  who  furnish  authenticated  copies  un- 
der this  act  shall  attest  their  authentication  by  the  use  of  an 
official  seal,  which  is  hereby  authorized  for  that  purpose. 

§  445.  Copies — Postoffice  Records. 

§  889,  R.  S.,  Comp.  Stat.  1901,  p.  671,  Rose's  Code,  § 

1786,  3  F.  S.  A.  31.     "Copies  of  the  quarterly  returns  of 
postmasters  and  of  any  papers  pertaining  to  the  accounts 
in  the  office  of  the  sixth  auditor,  and  transcripts  from  the 
money-order   account   books   of   the   Postoffice   Department, 
when  certified  by  the  sixth  auditor  under  the  seal  of  his 
office,  shall  be  admitted  as  evidence  in  the  courts  of  the  Unit- 
ed States,  in  civil  suits  and  criminal  prosecutions;  and  in 
any  civil  suit,  in  case  of  delinquency  of  any  postmaster  or 
contractor,  a  statement  of  the  account,  certified  as  aforesaid, 
shall  be  admitted  in  evidence,  and  the  court  shall  be  author- 
ized thereupon  to  give  judgment  and  award  execution,  sub- 
ject to  the  provisions  of  law  as  to  proceedings  in  such  civil 
suits." 


EVIDENCE  271- 

§  446.  Copy — Postoffice   Department   Demand  on   Post- 
masters. 

§  890,  R.  S.,  Comp.  8 tat.  1901,  p.  672,  Rose's  Code,  § 
178,  3  F.  S.  A.  32.  "In  all  suits  for  the  recovery  of  balances 
due  from  postmasters,  a  copy,  duly  certified  under  the  seal 
of  the  sixth  auditor,  of  the  statement  of  any  postmaster, 
special  agent,  or  other  person,  employed  by  the  Postmaster 
General  or  the  auditor  for  that  purpose,  that  he  has  mailed 
a  letter  to  such  delinquent  postmaster  at  the  postoffice  where 
the  indebtedness  accrued,  or  at  his  last  usual  place  of  abode ; 
that  a  sufficient  time  has  elapsed  for  said  letter  to  have 
reached  its  destination  in  the  ordinary  course  of  the  mail ; 
and  that  payment  of  such  balance  has  not  been  received, 
within  the  time  designated  in  his  instructions,  shall  be  re- 
ceived as  sufficient  evidence  in  the  courts  of  the  United 
States,  or  other  courts,  that  a  demand  has  been  made  upon 
the  delinquent  postmaster;  but  when  the  account  of  a  late 
postmaster  has  been  once  adjusted  and  settled,  and  a  de- 
mand has  been  made  for  the  balance  appearing  to  be  due, 
and  afterward  allowances  are  made  or  credits  entered,  it 
shall  not  be  necessary  to  make  a  further  demand  for  the  new 
balance  found  to  be  due." 

§  447.  Copies — Land  Office  Records — Certification  of. 

By  commissioner  or  principal  clerk. 

§  891,  R.  S.,  Comp.  Stat.  1901,  p.  672,  Rose's  Code,  § 
1788,  3  F.  8.  A.  32.  "Copies  of  any  records,  books,  or  papers 
in  the  General  Land  Office,  authenticated  by  the  seal  and 
certified  by  the  Commissioner  thereof,  or,  when  his  office  is 
vacant,  by  the  principal  clerk,  shall  be  evidence  equally  with 
the  originals  thereof.  And  literal  exemplifications  of  any 
such  records  shall  be  held,  when  so  introduced  in  evidence, 
to  be  of  the  same  validity  as  if  the  names  of  the  officers  sign- 
ing and  countersigning  the  same  had  been  fully  inserted  in 
such  record." 

§  2469,  R.  S.,  Comp.  Stat.  1901,  p.  1557,  S  F.  8.  A.  41, 
Rose's  Code,  §  1789.  "The  Commissioner  of  the  General 
Land  Office  shall  cause  to  be  prepared,  and  shall  certify,  un- 
der the  seal  of  the  office,  such  copies  of  records,  books,  and 
papers  on  file  in  l.'s  office  as  may  be  applied  for,  to  be  used 
in  evidence  in  the  courts  of  justice." 


27:2         MONTGOMERY'S  MAM  UAL  OF  FEDERAL  PROCEDURE     §  448 

§  2470,  R.  S.,  Comp.  Stat.  1901,  p.  1557,  3  F.  S.  A.  41, 
Rose's  Code,  §  7790.  "Literal  exemplification  of  any  rec- 
ords which  have  been  or  may  be  granted  in  virtue  of  the 
preceding  section  shall  be  deemed  of  the  same  validity  in 
all  proceedings,  whether  at  law  or  in  equity,  wherein  such 
exemplifications  are  adduced  in  evidence,  as  if  the  names 
of  the  officers  signing  and  countersigning  the  same  had  been 
fully  inserted  in  such  record." 

By  recorder  of  General  Land  Office. 

Act  Apr.  19,  1904,  ch.  1396,  33  Stat.  at  L.  185,  Comp. 
Stat.  1911,  p.  273,  10  F.  8.  A.  354,  Rose's  Code,  §  1793. 
"Copies  of  any  patents,  records,  books,  or  papers  in  the  Gen- 
eral Land  Office  authenticated  by  the  seal  and  certified  by  the 
recorder  of  such  office  shall  be  evidence  equally  with  the  orig- 
inals thereof  to  the  same  force  and  effect  as  when  certified 
by  the  Commissioner  of  said  office." 

By  registers  and  receivers  of  land  offices. 

Act  Mar.  22, 1904,  ch.  748,  33  Stat.  at  L.  144,  Comp.  Stat. 
1911,  p.  573,  10  F.  S.  A.  355,  Rose's  Code,  §  1791.  "The 
transcripts  thus  furnished,  when  duly  certified  to  by  them, 
shall  be  admitted  as  evidence  in  all  courts  of  the  United  States 
and  the  territories  thereof,  and  before  all  officials  author- 
ized to  receive  evidence,  with  the  same  force  and  effect  as  the 
original  records." 

§  448.  Subpoena  Duces  Tecum  to  Register  of  Land  Office. 
Act  April  19,  1904,  ch.  1398,  33  Stat.  at  L.  186,  Comp. 
Stat.  1911,  p.  87,  10  F.  8.  A.  365,  Roses  Code,  §  1792. 
"Whenever  the  register  of  any  United  States  land  office  shall 
be  served  with  a  subpoena  d uces  tecum  or  other  valid  legal  proc- 
ess requiring  him  to  produce,  in  any  United  States  court  or  in 
any  court  of  record  of  any  state,  the  original  application  for 
entry  of  public  lands  or  the  final  proof  of  residence  and  culti- 
vation or  any  other  original  papers  on  file  in  the  General 
Land  Office  of  the  United  States  on  which  a  patent  to  land 
has  been  issued  or  which  furnish  the  basis  for  such  patent, 
it  shall  be  the  duty  of  such  register  to  at  once  notify  the 
Commissioner  of  the  General  Land  Office  of  the  service  of 
such  process,  specifying  the  particular  papers  he  is  required 


§    451  EVIDENCE  273 

to  produce,  and  upon  receipt  of  such  notice  from  any  regis- 
ter of  a  United  States  land  office  the  Commissioner  of  the 
General  Land  Office  shall  at  once  transmit  to  such  register 
the  original  papers  specified  in  such  notice,  and  which  such 
register  is  required  to  produce,  and  to  attach  to  such  papers 
a  certificate,  under  seal  of  his  office,  properly  authenticating 
them  as  the  original  papers  upon  which  patent  was  issued ; 
and  such  papers  so  authenticated  shall  be  received  in  evi- 
dence in  all  courts  of  the  United  States  and  in  the  several 
state  courts  of  the  states  of  the  Union :  Provided,  That  the 
Secretary  of  the  Interior  shall  make  rules  and  regulations 
to  secure  the  return  of  such  documents  to  the  General  Land 
Office,  after  use  in  evidence,  without  cost  to  the  United 
States." 

§  449.  Copies — Commissioner  of  Indian  Affairs — Certifi- 
cation of. 

PL  §  8,  Act  July  26,  1892,  cli.  256,  27  Stat.  at  L.  272, 
Comp.  Stat.  1901,  p.  263,  3  F.  8.  A.  338,  Rose's  Code,  § 
1779.  "Copies  of  any  public  documents,  records,  books, 
maps,  or  papers  belonging  to  or  on  the  files  of  said  office 
authenticated  by  the  seal  and  certified  by  the  Commissioner 
thereof,  or  by  such  officer  as  may,  for  the  time  being,  be  act- 
ing as  or  for  such  Commissioner,  shall  be  evidence  equally 
with  the  originals  thereof." 

§  450.  Copies — Patent  Office  Records,  Letters  Patent,  etc. 

§  892,  R.  8.,  Comp.  Stat.  1901,  p.  673,  Rose's  Code,  § 

1794,  3  F.  8.  A.  33.     "Written  or  printed  copies  of  any 
records,  books,  papers,  or  drawings  belonging  to  the  Patent 
Office,  and  of  letters  patent  authenticated  by  the  seal  and 
certified  by  the  Commissioner  or  acting  Commissioner  there- 
of, shall  be  evidence  in  all  cases  wherein  the  originals  could 
be  evidence;   and  any  person  making  application  therefor, 
and   paying   the  fee  required  by  law,   shall  have  certified 
copies  thereof." 

§  451.  Copies — Foreign  Letters  Patent. 

§  893,  R.  S.,  Comp.  Stat.  1901,  p.  673,  Roses  Code,  § 

1795,  3  F.  8.  A.  33.    "Copies  of  the  specifications  and  draw- 
ings of  foreign  letters  patent,  certified  as  provided  in  the 
preceding  section,  shall  be  prima  facie  evidence  of  the  fact 
of  the  granting  of  such  letters  patent,  and  of  the  date  and 

contents  thereof." 
Montg. — 18. 


274        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  455 

§  452.  Copies — Printed  Copies  of  Specifications  and  Draw- 
ings of  Patents. 

§  894,  R.  8.,  Comp.  Stat.  1901,  p.  678,  Rose's  Code,  § 

1796.  "The  printed  copies  of  specifications  and  drawings 
of  patents,  which  the  Commissioner  of  Patents  is  author- 
ized to  print  for  gratuitous  distribution,  and  to  deposit  in 
the  capitols  of  the  states  and  territories,  and  in  the  clerk's 
^ffices  of  the  district  courts,   shall,  when  certified  by  him 

and  authenticated  by  the  seal  of  his  office,  be  received  in  all 
courts  as  evidence  of  all  matters  therein  contained." 

§  453.  Copies — Patent  Office  Records — Trademarks. 

Pt.  %  11  of  Act  Feb.  20,  1905,  ch.  592,  33  Stat.  at  L.  727, 
Comp.  St.  1911,  p.  1464,  10  F.  8.  A.  412,  Rose's  Code,  § 

1797.  ".  .  .  Written  or  printed  copies  of  any  records,  books, 
papers,  or  drawings  relating  to  trademarks  belonging  to  the 
Patent  Office,  and  of  certificates  of  registration,   authenti- 
cated by  the  seal  of  the  Patent  Office  and  certified  by  the 
Commissioner  thereof,  shall  be  evidence  in  all  cases  wherein 
the  originals  could  be  evidence;  and  any  person  making  ap- 
plication therefor  and  paying  the  fee  required  by  law  shall 
have  certified  copies  thereof." 

§  454.  Copies — United  States  Consular  Records. 

§  896,  R.  S.,  Comp.  Stat.  1901,  p.  674,  Rose's  Code,  § 

1799,  3  F.  S.  A.  34.     "Copies  of  all  official  documents  and 
papers  in  the  office  of  any  consul,  vice  consul,  or  commercial 
agent  of  the  United  States,  and  of  all  official  entries  in  the 
books  or  records  of  any  such  office,  certified  under  the  hand 
and  seal  of  such  office,  shall  be  admitted  in  evidence  in  the 
courts  of  the  United  States." 

§  455.  Copies — United  States  Clerks'  New  Records  in  Cer- 
tain States. 

§  897,  R.  S.,  Comp.  Stat.  1901,  p.  674,  Rose's  Code,  § 

1800,  3  F.  S.  A.  34.    "The  transcripts  into  new  books,  made 
by  the  clerks  of  the  district  courts  in  the  several  districts 
of  Texas,  Florida,  Wisconsin,  Minnesota,  Iowa,  and  Kan- 
sas, in  pursuance  of  the  act  of  June  twenty-seven,  eighteen 
hundred  and  sixty-four,  chapter  one  hundred  and  sixty-five, 
from  the  records  and  journals  transferred  by  them  respective- 
ly, under  the  said  act,  to  the  clerks  of  the  circuit  courts  in 


§    458  EVIDENCE  275 

said  districts,  when  certified  by  the  clerks  respectively  mak- 
ing the  same  to  be  full  and  true  copies  from  the  original 
books,  shall  have  the  same  force  and  effect  as  records  as  the 
originals.  And  the  certificates  of  the  clerks  of  said  circuit 
courts,  respectively,  of  transcripts  of  any  of  the  books  or 
papers  so  transferred  to  them,  shall  be  received  in  evidence 
with  the  like  effect  as  if  made  by  the  clerk  of  the  court  in 
which  the  proceedings  were  had." 

§  456.  Copies — United    States    Clerks'    New    Records — 
North  Carolina. 

§  898,  R.  S.f  Comp.  Stat.  1901,  p.  674,  Roses  Code,  § 
1801,  3  F.  8.  A.  34.  "The  transcripts  into  new  books  made 
by  the  clerks  of  the  circuit  and  district  courts  for  the  west- 
ern district  of  North  Carolina,  in  pursuance  of  the  act  of 
June  four,  eighteen  hundred  and  seventy-two,  chapter  two 
hundred  and  eighty-two,  when  certified  by  the  clerks  respec- 
tively making  the  same  to  be  full  and  true  copies  from  the 
original  books,  shall  have  the  same  force  and  effect  as  records 
as  the  originals.  And  the  certificates  of  the  clerks  of  said 
circuit  and  district  courts  respectively,  of  transcripts  of  any 
of  the  said  transcribed  records,  shall  also  be  received  in  evi- 
dence with  the  like  effect  as  if  made  by  the  proper  clerk 
from  the  originals  from  which  such  records  were  transcribed." 

§  457.  Judicial  Notice  Taken  of  the  Seal  of  the  Depart- 
ment of  Commerce  and  Labor. 

PL  §  1,  Act  Feb.  14,  1903,  ch.  552,  32  Stat.  at  L.  825, 
Comp.  Stat.  1911,  p.  114,  10  F  S.  A.  58,  Rose's  Code,  § 
1807.  "The  said  Secretary  shall  cause  a  seal  of  office  to  be 
made  for  the  said  Department  of  such  device  as  the  President 
shall  approve,  and  judicial  notice  shall  be  taken  of  the  said 
seal." 

§  458.  Burden  of  Proof — Seizure   Cases  under  Customs 
Duties  Laws. 

§  909,  R.  8.,  Comp.  Stat.  1901,  p.  679,  3  F.  8.  A.  95, 
.Rose's  Code,  §  1513.  "(Burden  of  proof,  when  it  lies  on 
claimant  in  seizure  cases. )  In  suits  or  informations  brought, 
where  any  seizure  is  made  pursuant  to  any  act  providing 
for  or  regulating  the  collection  of  duties  on  imports  or  ton- 
nage, if  the  property  is  claimed  by  any  person,  the  burden 
of  proof  shall  lie  upon  such  claimant:  Provided,  That  prob- 


276        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDI-RE      § 

able  cause  is  shown  for  such  prosecution,  to  be  judged  of  by 
the  court." 

§  459.  Reports  of  Investigations  of  Accidents  from  Fail- 
ure of  Boilers — Not  Admissible  in  Damage  Suits. 

Pt.  §  8,  Act  Feb.  17,  1911,  Ch.  103f  Comp.  St.  1911,  p. 
1337, 1912  Supp.  F.  8.  A.  v.  1,  p.  342.  "Neither  said  report 
nor  any  report  of  said  investigation  nor  any  part  thereof 
shall  be  admitted  as  evidence  or  used  for  any  purpose  in  any 
suit  or  action  for  damages  growing  out  of  any  matter  men- 
tioned in  said  report  or  investigation.  (36  Stat.  at  L.  916.)" 

§  460.  Government  Paramount  Title  Does  Not  Affect  Pos- 
sessory Action  Mining  Titles. 

§  910,  R.  S.,  Comp.  Stat.  1901,  p.  679,  5  F.  S.  A.  35, 
Rose's  Code,  §  824-  "No  possessory  action  between  persons, 
in  any  court  of  the  United  States,  for  the  recovery  of  any 
mining  title,  or  for  damages  to  any  such  title,  shall  be  affected 
by  the  fact  that  the  paramount  title  to  the  land  in  which 
such  mines  lie  is  in  the  United  States." 

§  461.  Publication  of  Interstate  Commerce  Reports  and 
Decisions  as  Evidence. 

Pt.  §  14,  Act  Feb.  19,  1903,  ch.  708,  32  Stat.  at  L.  847,  as 
amended  June  29,  1906,  ch.  3591,  §  3,  34  Stat.  at  L.  589, 
1909  Supp.  F.  S.  A.  265,  Rose's  Code,  §  1814-  ".  .  .  The 
Commission  may  provide  for  the  publication  of  its  reports  and 
decisions  in  such  form  and  manner  as  may  be  best  adapted  for 
public  information  and  use,  and  such  authorized  publica- 
tions shall  be  competent  evidence  of  the  reports  and  decisions 
of  the  Commission  thei'ein  contained  in  all  courts  of  the 
United  States  and  of  the  several  states  without  any  further 
proof  or  authentication  thereof.  The  Commission  may  also 
cause  to  be  printed  for  early  distribution  its  annual  reports." 

§  462.  Proof  of  Signature  and  Handwriting. 

Act  February  26,  1913,  ch.  79,  37  Stat.  at  L.  683.  "In 
any  proceeding  before  a  court  or  judicial  officer  of  the  United 
States  where  the  genuineness  of  the  handwriting  of  any  per- 
son may  be  involved,  any  admitted  or  proved  handwriting  of 
such  person  shall  be  competent  evidence  as  a  basis  for  com- 
parison by  witnesses,  or  by  the  jury,  court,  or  officer  conduct- 
ing such  proceeding,  to  prove  or  disprove  such  genuineness." 


CHAPTER    15. 

WITNESSES. 

Sec. 

470.  Competence  of  Witnesses  Determined  by  State  Laws. 

471.  Perjury  Not  Now  a  Disqualification. 

472.  Not    Disqualified    by    Claiming    Compensation    under    Customs-Revenue 

Laws. 

473.  Officers  and  Informers  Not  Disqualified  in  Suits  for  Fines,  Penalties,  or 

Forfeitures. 

474.  Immunity  of  Witnesses  in  Cases  under  Commerce  and  Anti-Trust  Laws. 

475.  Immunity  in  Criminal  Cases. 

476.  Same — Testimony  Given  before  Congress. 

477.  Same — Testimony  in  Judicial  Proceedings. 

478.  Defendant  as  WTitness  in  Criminal  Proceedings. 

479.  Compulsory  Process  for  Witnesses  in  Criminal  Cases. 

480.  Recognizance  of  Witnesses — Criminal  Cases. 

481.  Same — In  Vermont. 

482.  Same — On  behalf  of  the  United  States  by  District  Attorney. 

483.  Subpoena  for  Witnesses  in  Another  District. 

484.  Subpoena  and  Attendance  of  Witnesses  for  United  States. 

485.  Subpoena  for  Witnesses  for  Indigent  Defendant  in  Criminal  Cases. 

486.  Enforcing  Attendance  and  Testimony  of  Witnesses. 

487.  Court's  Power  to  Punish  Witnesses  for  Contempt. 

488.  Fees  and  Mileage  of  Witnesses  Who  Testify. 

489.  Amount  of  Fees  and  Mileage  of  Witnesses. 

490.  Double  Mileage  for  Witnesses  Prohibited. 

491.  Subpoena  for  Witnesses  in  Contested  Patent  Cases. 

492.  Enforcing  Attendance  and  Testimony  of  Witnesses  in  Patent  Cases. 

493.  Fees  of  Witnesses  in  Patent  Cases. 

494.  Subpoena  to  Witnesses  in  Claim  Cases  against  United  States  Pending  in 

Departments. 

495.  Enforcing  Attendance  and  Testimony  of  Witnesses  in  Claim  Cases  against 

United  States  Pending  in  Departments. 

496.  Fees  of  Witnesses  in  Claim  Cases  against  United  States  Pending  in  De- 

partments. 

497.  Compulsory    Attendance   of    Witnesses   under    Interstate   Commerce    Act. 
438.  Compulsory  attendance  of  Witnesses  under   Income  Tax  Law. 

277 


278        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  472 

§  470.  Competence  of  Witnesses  Determined  by  State 
Laws. 

§  858,  R.  S.,  34  S tat.  at  L.  618,  Rose's  Code,  §  1735, 
Comp.  St.  1911,  p.  271,  1909  Supp.  F.  S.  A.  708.  "The 
competence  of  a  witness  to  testify  in  any  civil  action,  suit, 
or  proceeding  in  the  courts  of  the  United  States  shall  be  de- 
termined by  the  laws  of  the  state  or  territory  in  which  the 
court  is  held." 

The  phrase  "civil  actions"  includes  all  judicial  controversies 
in  which  the  rights  of  property  are  involved  whether  between 
private  parties  or  such  parties  and  the  government.1  An  objec- 
tion to  the  competency  of  a  witness  is  waived,  where  such  objection 
was  not  made  at  the  time  the  witness  was  sworn  nor  at  any  time 
during  trial.2 

§  471.  Perjury  Not  Now  a  Disqualification. 

§  125  of  the  Penal  Code,  Comp.  St.  1911,  p.  1625,  1909 
Supp.  F.  S.  A.  437,  supersedes  §  5392,  K.  S.,  Hose's  Code,  § 
1736,  making  perjury  of  a  witness  a  disqualification.  The 
new  provision  omits  to  make  such  a  witness  incompetent. 
So,  also,  subornation  of  perjury  under  §  126  of  the  Penal 
Code  would  not  disqualify  a  witness. 

§  472.  Not  Disqualified  by  Claiming  Compensation  under 
Customs-Revenue  Laws. 

§  8,  Act  June  22,  1874,  ch.  391,  Comp.  St.  1901,  p.  2021, 
S  F.  S.  A.  43.  "That  no  officer,  or  other  person  entitled  to 
or  claiming  compensation  under  any  provision  of  this  act, 
shall  be  thereby  disqualified  from  becoming  a  witness  in 
any  action,  suit,  or  proceeding  for  the  recovery,  mitigation, 
or  remission  thereof,  but  shall  be  subject  to  examination  and 
cross-examination  in  like  manner  with  other  witnesses,  with- 
out being  thereby  deprived  of  any  right,  title,  share,  or  in- 
terest in  any  fine,  penalty,  or  forfeiture  to  which  such  ex- 
amination may  relate ;  and  in  every  such  case  the  defendant 
or  defendants  may  appear  and  testify  and  be  examined  and 
cross-examined  in  like  manner." 

1  Green  v.  United  States,  9  Wall.  655,  19  L.  ed.  806;  United  States  v. 
Ten  Thousand  Cigars,  Woohv.  123,  Fed.  Cas.  No.  16,4s]. 

8  Bise  v.  United  States,  144  Fed.  374,  74  C.  C.  A.  1,  7  Ann.  Cas.  165, 


§  476  WITNESSES  279 

§  473.  Officers  and  Informers  Not  Disqualified  in  Suits  for 
Fines,  Penalties,  or  Forfeitures. 

§  5295,  R.  8.,  Comp.  Stat.  1901,  p.  3608,  3  F.  S.  A.  106. 
"Any  officer  or  other  person  entitled  to  or  interested  in  a  part 
or  share  of  any  fine,  penalty,  or  forfeiture  incurred  under 
any  law  of  the  United  States,  may  be  examined  as  a  witness 
in  any  of  the  proceedings  for  the  recovery  of  such  fine,  pen- 
alty, or  forfeiture  by  either  of  the  parties  thereto,  and  such 
examination  shall  not  deprive  such  witness  of  his  share  or 
interest  in  such  fine,  penalty,  or  forfeiture." 

§  474.  Immunity  of  Witnesses  in  Cases  under  Commerce 
and  Anti-Trust  Laws. 

Act  June  30,  1906,  ch.  3920,  34  Stat.  at  L.  798,  Comp.  St. 
1911,  p.  1319,  1909  Supp.  F.  8.  A.  708.  Extends  "only  to 
a  natural  person  who,  in  obedience  to  a  subposna,  gives  testi- 
mony under  oath  or  produces  evidence,  documentary  or  other- 
wise, under  oath." 

§  475.  Immunity  in  Criminal  Cases. 

PL  5th  Amend.  U.  8.  Const.,  Rose's  Code,  §  1738.  "No 
person  .  .  .  shall  be  compelled  in  any  criminal  case  to  be 
a  witness  against  himself." 

The  seizure  or  compulsory  production  of  a  man's  private  papers 
to  be  used  against  him  is  equivalent  to  compelling  him  to  be  a 
witness  against  himself.8 

§  476.  Same — Testimony  Given  before  Congress. 

§  859,  R.  8.,  Comp.  Stat.  1901,  p.  660,  3  F.  8.  A.  5, 
Rose's  Code,  §  1740.  "No  testimony  given  by  a  witness  be- 
fore either  House,  or  before  any  committee  of  either  House 
of  Congress,  shall  be  used  as  evidence  in  any  criminal  pro- 
ceeding against  him  in  any  court,  except  in  a  prosecution 
for  perjury  committed  in  giving  such  testimony.  But  an 
official  paper  or  record  produced  by  him  is  not  within  the 
said  privilege." 

«Boyd  v.  United  States,  116  U.  S.  616,  29  L.  e<l.  746,  6  Sup.  Ct.  Rep.  524; 
In  re  Ranter,  117  Fed.  356. 


280        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  480 

§  477.  Same — Testimony  in  Judicial  Proceedings. 

§  860,  R.  S.,  Conip.  Mat.  1901,  p.  661,  3  F.  8.  A.  5, 
Rose's  Code,  §  1741-  a^<>  pleading  of  a  party,  nor  any  dis- 
covery or  evidence  obtained  from  a  party  or  witness  by  means 
of  a  judicial  proceeding  in  this  or  any  foreign  country,  shall 
be  given  in  evidence,  or  in  any  manner  used  against  him  or 
his  property  or  estate,  in  any  court  of  the  United  States,  in 
any  criminal  proceeding,  or  for  the  enforcement  of  any  pen- 
alty or  forfeiture:  Provided,  That  this  section  shall  not  ex- 
empt any  party  or  witness  from  prosecution  and  punishment 
for  perjury  committed  in  discovering  or  testifying  as  afore- 
said." 

§  478.  Defendant  as  Witness  in  Criminal  Proceedings. 

Act  March  16,  1818,  ch.  37,  20  Stat.  at  L.  30,  Camp.  Stat. 
1901,  p.  660,  7  F.  8.  A.  1120,  Rose's  Code,  §  1731.  "That 
in  the  trial  of  all  indictments,  informations,  complaints,  and 
other  proceedings  against  persons  charged  with  the  commis- 
sion of  crimes,  offenses,  and  misdemeanors  in  the  United 
States  courts,  territorial  courts,  and  courts-martial,  and  courts 
of  inquiry,  in  any  state  or  territory,  including  the  District 
of  Columbia,  the  person  so  charged  shall,  at  his  own  request, 
but  not  otherwise,  be  a  competent  witness.  And  his  failure 
to  make  such  request  shall  not  create  any  presumption  against 
him." 

§  479.  Compulsory    Process   for   Witnesses   in    Criminal 
Cases. 

Pt.  Sixth  Amend.  U.  S.  Const.  Rose's  Code,  §  1739.  "In 
all  criminal  prosecutions,  the  accused  shall  enjoy  the  right 
to  be  confronted  with  the  witnesses  against  him ;  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favor." 

§  480.  Recognizance  of  Witnesses — Criminal  Cases. 

§  879,  R.  8.,  Comp.  Stat.  1901,  p.  668,  7  F.  8.  A.  1123, 
Rose's  Code,  §  77-45.  "Any  judge  or  other  officer  who  may 
be  authorized  to  arrest  and  imprison  or  bail  persons  charged 
with  any  crime  or  offense  against  the  United  States  may,  at 
the  hearing  of  any  such  charge,  require  of  any  witness  pro- 
duced against  the  prisoner,  on  pain  of  imprisonment,  a  recog- 
nizance, with  or  without  sureties,  in  his  discretion,  for  his 
appearance  to  testify  in  the  case.  And  where  the  crime  or 
offense  is  charged  to  have  been  committed  on  the  high  seas, 


§    483  WITNESSES  281 

or  elsewhere  within  the  admiralty  and  maritime  jurisdiction 
of  the  United  States,  he  may,  in  his  discretion,  require  a  like 
recognizance,  with  such  sureties  as  he  may  deem  necessary, 
of  any  witness  produced  in  behalf  of  the  accused,  whose  tes- 
timony in  his  opinion  is  important,  and  is  in  danger  of  being 
otherwise  lost." 

§  481.  Same — in  Vermont. 

§  880,  R.  8.,  Comp.  8 tat.  1901,  p.  668,  7  F.  8.  A.  1123, 
Roses  Code,  §  1746.  "In  the  district  of  Vermont,  all  recog- 
nizance of  witnesses  taken  by  any  magistrate  in  said  district, 
for  their  appearance  to  testify  in  any  case  cognizable  either 
in  the  district  or  circuit  court  thereof,  shall  be  to  the  circuit 
court  next  thereafter  to  be  held  in  the  said  district." 

§  482.  Same — On  behalf  of  the  United  States  by  District 
Attorney. 

§  881,  R.  8.,  Comp.  Stat.  1901,  p.  669,  7  F.  8.  A.  1123, 
Rose's  Code,  §  17J/.7.  "Any  judge  of  the  United  States,  on 
the  application  of  a  district  attorney,  and  on  being  satisfied 
by  proof  that  the  testimony  of  any  person  is  competent  and 
will  be  necessary  on  the  trial  of  any  criminal  proceeding  in 
which  the  United  States  are  parties  or  are  interested,  may 
compel  such  person  to  give  recognizance^  with  or  without 
sureties,  at  his  discretion,  to  appear  to  testify  therein ;  and, 
for  that  purpose,  may  issue  a  warrant  against  such  person, 
under  his  hand,  with  or  without  seal,  directed  to  the  marshal 
or  other  officer  authorized  to  execute  process  in  behalf  of  the 
United  States,  to  arrest  and  bring  before  him  such  person. 
If  the  person  so  arrested  neglects  or  refuses  to  give  recogni- 
zance in  the  manner  required,  the  judge  may  issue  a  war- 
rant of  commitment  against  him,  and  the  officer  shall  convey 
him  to  the  prison  mentioned  therein.  And  the  said  person 
shall  remain  in  confinement  until  he  is  removed  to  the  court 
for  the  purpose  of  giving  his  testimony,  or  until  he  gives  the 
recognizance  required  by  said  judge." 

§  483.  Subpoena  for  Witnesses  in  Another  District. 

§  876,  R.  8.,  Comp.  Stat.  1901,  p.  667,  7  F.  S.  A.  1121, 
Rose's  Code,  §  1742.  "Subpoenas  for  witnesses  who  are  re- 
quired to  attend  a  court  of  the  United  States,  in  any  district, 
may  run  into  any  other  district:  Provided,  That  in  civil 
causes  the  witnesses  living  out  of  the  district  in  which  the 


282        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  486 

court  is  held  do  not  live  at  a  greater  distance  than  one  hun- 
dred miles  from  the  place  of  holding  the  same." 

In  civil  actions  if  a  witness  lives  out  of  the  district  at  a  greater 
distance  than  one  hundred  miles  from  the  place  of  holding  court, 
his  testimony  must  be  taken  by  deposition.4 

In  criminal  cases  there  seems  to  be  no  limit.8 

§  484.  Subpoena  and  Attendance  of  Witnesses  for  United 
States. 

§  877,  R.  8.,  Comp.  Stat.  1901,  p.  667,  7  F.  S.  A.  1122, 
Rose's  Code,  §  1743-  "Witnesses  who  are  required  to  attend 
any  term  of  a  district  court  on  the  part  of  the  United  States 
shall  be  subpoenaed  to  attend  to  testify  generally  on  their  be- 
half, and  not  to  depart  the  court  without  leave  thereof,  or 
of  the  district  attorney;  and  under  such  process  they  shall 
appear  before  the  grand  or  petit  jury,  or  both,  as  they  may 
be  required  by  the  court  or  district  attorney." 

§  485.  Subpoena  for  Witnesses  for  Indigent  Defendant  in 
Criminal  Cases. 

§  878,  R..8.,  Comp.  Stat.  1901,  p.  668,  7  F.  8.  A.  1122, 
Rose's  Code,  §  1744-  "Whenever  any  person  indicted  in  a 
court  of  the  United  States  makes  affidavit,  setting  forth  that 
there  are  witnesses  whose  evidence  is  material  to  his  defense ; 
that  he  cannot  safely  go  to  trial  without  them ;  what  he  ex- 
pects to  prove  by  each  of  them ;  that  they  are  within  the  dis- 
trict in  which  the  court  is  held,  or  within  one  hundred  miles 
of  the  place  of  trial ;  and  that  he  is  not  possessed  of  sufficient 
means,  and  is  actually  unable  to  pay  the  fees  of  such  witness- 
es, the  court  in  term,  or  any  judge  thereof  in  vacation,  may 
order  that  such  witnesses  be  subpoenaed  if  found  within  the 
limits  aforesaid.  In  such  case  the  costs  ircurred  by  the  proc- 
ess and  the  fees  of  the  witness  shall  be  paid  in  the  same 
manner  that  similar  costs  and  fees  are  paid  in  case  of  witness- 
es subpoenaed  in  behalf  of  the  United  States." 

§  486.  Enforcing  Attendance  and  Testimony  of  Witnesses. 
§  4073,  R.  S.,  Comp.  Stat.  1901,  p.  2764,  3  F.  8.  A.  42, 

*  Smith  v.  Chicago,  etc.,  R.  Co.  38  Fed.  321. 

5  United  States  v.  Potter,  Boyce  U.  S.  Pr.  98,  27  Fed.  Cas.  No.  16,07f>. 


§  489  WITNESSES  283 

Rose's  Code,  §  1752.  "If  any  person  shall  refuse  or  neglect 
to  appear  at  the  time  and  place  mentioned  in  the  summons 
issued,  in  accordance  with  section  forty  hundred  and  seventy- 
one,  or  if  upon  his  appearance  he  shall  refuse  to  testify,  he 
shall  be  liable  to  the  same  penalties  as  would  be  incurred 
for  a  like  offense  on  the  trial  of  a  suit  in  the  district  court 
of  the" United  States." 

§  487.  Court's  Power  to  Punish  Witnesses  for  Contempt. 
§  268,  Judicial  Code?  36  Stat.  at  L.  1163,  Comp.  St. 
1911,  p.  237,  1912  Supp.  F.  S.  A.  v.  1,  p.  243.  "The  said 
courts  shall  have  power  ...  to  punish,  by  fine  or  im- 
prisonment, at  the  discretion  of  the  court,  contempts  of  their 
authority:  .  .  .  the  disobedience  or  resistance 
by  any  .  .  .  witness  ...  to  any  lawful  writ,  process, 
order,  rule,  decree,  or  command  of  said  courts." 

§  488.  Fees  and  Mileage  of  Witnesses  Who  Testify. 

§  4074,  R-  S.,  Comp.  Stat.  1901,  p.  2764,  3  F.  8.  A.  42, 
7  F.  S.  A.  1126,  Rose's  Code,  §§  728,  1753.  "Every  wit- 
ness who  shall  so  appear  and  testify  shall  be  allowed,  and 
shall  receive  from  the  party  at  whose  instance  he  shall  have 
been  summoned,  the  same  fees  and  mileage  as  are  allowed 
to  witnesses  in  suits  depending  in  the  district  courts  of  the 
United  States." 

§  489.  Amount  of  Fees  and  Mileage  of  Witnesses. 

§  848,  R.  S.,  Comp.  Stat.  1901,  p.  654,  7  F.  S.  A.  1124, 
Rose's  Code,  §  725.  "For  each  day's  attendance  in  court, 
or  before  any  officer  pursuant  to  law,  one  dollar  and  fifty 
cents,  and  five  cents  a  mile  for  going  from  his  place  of  res- 
idence to  the  place  of  trial  or  hearing,  and  five  cents  a  mile 
for  returning.  AYhen  a  witness  is  subprenaed  in  more  than 
one  cause  between  the  same  parties,  at  the  same  court,  only 
one  travel  fee  and  one  per  diem  compensation  shall  be  al- 
lowed for  attendance.  Both  shall  be  taxed  in  the1  case  first 
disposed  of,  after  which  the  per  diem,  attendance  fee  alone 
shall  be  taxed  in  the  other  cases  in  the  order  in  which  they 
are  disposed  of. 

»  Re-enacting  §  725,  R.  S.,  Rose's  Code,  §  807.  Foster's  Fed.  Prac.  (4th  cd.) 
pp.  734,  890,  912,  1082,  1083,  1097,  Comp.  St.  1901.  p.  583,  4  F.  S.  A.  549,  which 
section  is  repealed  by  §  297,  Judicial  Code.  In  general,  Merrimack  River 
Sav.  Bk.  v.  Clay  Center,  219  U.  S.  527.  55  L.  ed-  320.  31  Sup.  C't.  Rep.  295, 
Ann.  Cas.  ]fl!2'A.  512 


284        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDI KE     §  402 

"When  a  witness  is  detained  in  prison  for  want  of  security 
for  his  appearance,  he  shall  be  entitled,  in  addition  to  his 
subsistence,  to  a  compensation  of  one  dollar  a  day." 

§  490.  Double  Mileage  for  Witnesses  Prohibited. 

§  1,  Act  May  27,  1908,  Ch.  200,  Com  p.  St.  1911,  p.  270, 
1909  Supp.  F.'S.  A.  709.  "That  no  constructive  or  double 
mileage  fees  shall  be  allowed  by  reason  of  any  person  being 
summoned  as  both  a  \vitness  and  juror,  or  as  a  witness  in  two 
or  more  cases  pending  in  the  same  court  and  triable  at  the 
same  term  thereof." 

§  491.  Subpoena  for  Witnesses  in  Contested  Patent  Cases. 
§  4906,  R.  8.,  Cornp.  Stat.  1901,  p.  8390,  7  F.  8.  A.  1128, 
Rose's  Code,  §  1748.  "The  clerk  of  any  court  of  the  United 
States,  for  any  district  or  territory  wherein  testimony  is  to 
be  taken  for  use  in  any  contested  case  pending  in  the  Patent 
Office,  shall,  upon  the  application  of  any  party  thereto,  or  of 
his  agent  or  attorney,  issue  a  subpoena  for  any  witness  residing 
or  being  within  such  district  or  territory,  commanding  him 
to  appear  and  testify  before  any  officer  in  such  district  or 
territory  authorized  to  take  depositions  and  affidavits,  at 
any  time  and  place  in  the  subpoena  stated.  But  no  witness 
shall  be  required  to  attend  at  any  place  more  than  forty 
miles  from  the  place  where  the  subpoena  is  served  upon  him." 

§  492.  Enforcing  Attendance  and  Testimony  of  Witnesses 
in  Patent  Cases. 

§  4908,  R.  8.,  Comp.  Stat.  1901,  p.  3390,  7  F.  8.  A.  1128, 
Rose's  Code,  §  1749.  "Whenever  any  witness,  after  being 
duly  served  with  such  subpoena,  neglects  or  refuses  to  appear, 
or  after  appearing  refuses  to  testify,  the  judge  of  the  court 
whose  clerk  issued  the  subpoena  may,  on  proof  of  such  neglect 
or  refusal,  enforce  obedience  to  the  process,  or  punish  the 
disobedience,  as  in  other  like  cases.  But  no  witness  shall 
be  deemed  guilty  of  contempt  for  disobeying  such  subpoena, 
unless  his  fees  and  traveling  expenses  in  going  to,  returning 
from,  and  one  day's  attendance  at  the  place  of  the  examina- 
tion, are  paid  or  tendered  him  at  the  time  of  the  service  of 
the  subpoena ;  nor  for  refusing  to  disclose  any  secret  inven- 
tion or  discovery  made  or  owned  by  himself." 


§  497  WITNESSES  285 

§  493.  Fees  of  Witnesses  in  Patent  Cases. 

§  4907,  R-  S.t  Comp.  St.  1901,  p.  3390,  5  F.  8.  A.  501, 
7  F.  S.  A.  1128.  "Every  witness  duly  subpoenaed  and  in 
attendance  shall  be  allowed  the  same  fees  as  are  allowed  to 
witnesses  attending  the  courts  of  the  United  States." 

§  494.  Subpoena  to  Witnesses  in  Claim  Cases  against 
United  States  Pending  in  Departments. 

§  184,  R.  S.,  Comp.  St.  1901,  p.  92,  2  F.  S.  A.  5.  "Any 
head  of  a  department  or  bureau  in  which  a  claim  against  the 
United  States  is  properly  pending  may  apply  to  any  judge 
or  clerk  of  any  court  of  the  United  States,  in  any  state,  dis- 
trict, or  territory,  to  issue  a  subpoena  for  a  witness  being 
within  the  jurisdiction  of  such  court,  to  appear  at  a  time 
and  place  in  the  subpoena  stated,  before  any  officer  authorized 
to  take  depositions  to  be  used  in  the  courts  of  the  United 
States,  there  to  give  full  and  true  answers  to  such  written 
interrogatories  and  cross-interrogatories  as  may  be  submitted 
with  the  application,  or  to  be  orally  examined  and  cross- 
examined  upon  the  subject  of  sueli  claim." 

§  495.  Enforcing  Attendance  and  Testimony  of  Witnesses 
in  Claim  Cases  against  United  States  Pending  in  Depart- 
ments. 

§  186,  R.  S.,  Comp.  St.  1901,  p.  93,  2  F.  S.  A.  6.  "If 
any  witness,  after  being  duly  served  with  such  subpoena, 
neglects  or  refuses  to  appear,  or,  appearing,  refuses  to  testify, 
the  judge  of  the  district  in  which  the  subpoena  issued  may 
proceed,  upon  proper  process,  to  enforce  obedience  to  the 
subpoena,  or  to  punish  the  disobedience  in  like  manner  as  any 
court  of  the  United  States  may  do  in  case  of  process  of  sub- 
poena ad  testificandum  issued  by  such  court." 

§  496.  Fees  of  Witnesses  in  Claim  Cases  against  United 
States  Pending  in  Departments. 

§  185,  R.  S.,  Comp.  St.  1901,  p.  93,  2  F.  S.  A.  6.  "Wit- 
nesses subpoenaed  pursuant  to  the  preceding  section  shall  be 
allowed  the  same  compensation  as  is  allowed  witnesses  in 
the  courts  of  the  United  States." 

§  497.  Compulsory  Attendance  of  Witnesses  under  Inter- 
state Commerce  Act. 

Pt.  %  3,  Act  Feb.  19,  1903,  Ch.  708,  32  Stat.  at  L.  81,8, 


MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  498 

Com  p.  St.  1911,  p.l312,10F.S.A.  172.  "And  in  proceed- 
ings under  this  act  and  the  acts  to  regulate  commerce,  the  said 
courts  shall  have  the  power  to  compel  the  attendance  of  wit- 
nesses, both  upon  the  part  of  the  carrier  and  the  shipper,  who 
shall  be  required  to  answer  on  all  subjects  relating  directly  or 
indirectly  to  the  matter  in  controversy,  and  to  compel  the  pro- 
duction of  all  books  and  papers,  both  of  the  carrier  and  the 
shipper,  which  relate  directly  or  indirectly  to  such  transaction ; 
the  claim  that  such  testimony  or  evidence  may  tend  to  crimi- 
nate the  person  giving  such  evidence  shall  not  excuse  such 
person  from  testifying  or  such  corporation  producing  its  books 
and  papers^  but  no  person  shall  be  prosecuted  or  subjected  to 
any  penalty  or  forfeiture  for  or  on  account  of  any  transaction, 
matter,  or  thing  concerning  which  he  may  testify  or  produce 
evidence,  documentary  or  otherwise,  in  such  proceeding." 

§  498.  Compulsory  Attendance   of  Witnesses   under   In- 
come Tax  Law. 

§  3176  Subd.  K,  Act  Oct.  2,  1913,  ch  16,  38  Stat.  at  L. 
p.  179.  "That  jurisdiction  is  hereby  conferred  upon  the  dis- 
trict courts  of  the  United  States  for  the  district  within  which 
any  person  summoned  under  this  section  to  appear  and  testify 
or  to  produce  books  shall  reside,  to  compel  such  attendance, 
production  of  books,  and  testimony  by  appropriate  process." 


CHAPTER    16. 

DEPOSITIONS. 

Sec. 

500.  In  General. 

501.  Time  for  Taking  Depositions  at  Law. 

502.  Time  for  Taking  Depositions  in  Equity. 

503.  Same — Depositions  in  Equity  after  Issue. 

504.  Grounds  for  Depositions  in  Equity:     When   Allowed  by  Statute,  or  for 

Good  and  Exceptional  Cause. 

505.  Depositions  de  Bene  Esse — Conditions  for  Taking  and  Using. 

506.  Officers  before  Whom  Depositions  de  Bene  Esse  May  Be  Taken. 

507.  Notice  of  Taking  Depositions  de  Bene  Esse. 

508.  Compelling  Attendance  of  Witness — Depositions  de  Bene  Esse. 

509.  Mode  of  Taking  Depositions  de  Bene  Esse. 

510.  Equity  Rule  as  to  Form  of  Deposition. 

511.  Equity  Rule  as  to  Objections  to  Evidence. 

512.  Equity  Rule  as  to  Signing  Deposition. 

513.  Delivery  into  Court  of  Depositions  de  Bene  Esse. 

514.  Depositions  under  a  Commission. 

515.  Witnesses  Exempt  from   Attendance — Depositions  under   a  Commission. 

516.  Compelling  Attendance  and  Testimony  of  Witnesses  for  Depositions  under 

Commission. 

517.  Compelling  Production  of  Papers,  Written  Instruments,  Books,  or  Docu- 

ments in  Taking  Depositions  under  a  Commission. 

518.  Depositions  to  Perpetuate  Testimony  under  State  Laws — Admissible  in 

Court's  Discretion. 

519.  Depositions  may  Be  Taken  in  Mode  Prescribed  by  State  Law. 

520.  Depositions  in  Equity  under  Court  Order  before  Commissioner,  Master, 

or  Examiner. 

521.  Same — Notice. 

522.  Deposition  in  Equity  Published  on  Filing. 

523.  Letters  Rogatory  or  Commissions  to  Take  Depositions  of  Witnesses  in 

Foreign  Countries. 

524.  Taking  Testimony  to  Be  Used  in  Foreign  Countries. 

525.  Same — Witness  Need  Not  Criminate  Himself. 

526.  Publicity  in  Taking  Depositions  in  Anti-trust  Cases. 

§  500.  In  General.      Depositions  in  law  actions  can  only  be 
taken  on  grounds  specified  in  the  Federal  statutes,  and  in  equity 

287 


288        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  502 

"when  allowed  by  statute  or  for  good  and  exceptional  cause  for 
departing  from  the  general  rule."  (Equity  Rule  47.)  l 

The  Federal  statutes  authorize  two  classes  of  depositions:  (1) 
On  notice,  de  bene  esse,  that  is  to  say,  provisionally  anticipating 
that  it  will  be  impossible  to  produce  the  witness  in  open  court  for 
the  reasons  specified  in  §  863,  R.  S.  ;*  (2)  on  commission  under  § 
866,  R.  S.3 

The  manner  of  taking  these  depositions  is  specified  for  de  bene 
esse  in  §§  863-865,  R.  S.,4  and  on  commission  in  §§  866,  868, 
869,  870,  R.  S. ; 6  the  latter  kind  of  depositions  not  being  affected 
by  §§  863-4-5,  R.  S.  Depositions  may  also  be  taken  under  act 
March  9,  1892,  ch.  14,8  in  the  mode,  though  not  on  the  grounds, 
prescribed  by  the  laws  of  the  state,  and  under  §  867,  R.  S.,7  a 
Federal  court  in  its  discretion  may  admit  in  evidence  in  any 
cause  before  it  any  deposition  taken  in  perpetuam  rei  memoriam, 

•    "^nf A j/1    '•>  -.vv  K 

under  state  law. 

Depositions  in  equity  may  also  be  taken  under  order  of  court.8 
Letters  rogatory  or  on  commission  are  used  to  obtain  testimony 

of  witnesses  in  foreign  countries.9 

Depositions  may  be  taken  to  be  used  in  foreign  countries  under 

§§  4071,  4072,  R.  S.10 

§  501.  Time  for  Taking  Depositions  at  Law.  At  law  dep- 
ositions may  be  taken  at  any  time  after  the  complaint  is  filed, 
either  before  or  after  issue.  The  statute  does  not  designate  the 
time  for  taking.  In  providing  for  special  notice  whenever  by 
reason  of  want  of  an  attorney  of  record  the  giving  of  notice  as 
therein  required  shall  be  impracticable,  the  statute  implies  that 
such  depositions  may  be  taken  before  issue  joined. 

§  502.  Time  for  Taking  Depositions  in  Equity. 

Equity  Rule  54-*     "After  a  cause  is  at  issue,  depositions 
may  be  taken  as  provided  by  §§  863,  865,  866,  and  867, 

,;:>U   i;ifiJ«T  ai    /}! 

1  §  504,  infra.  2  §  505,  infra.  3  §  514,  infra. 

*  §§  506-7-8-9,  infra.          5  §§  514-5-6-7,  infra.         6  §   519,   infra. 

7§    518,   infra.  8  §§  594,  510.  511,  512,  520,  521,  522,  infra. 

»  §  523,  infra.  10  §'§  524-5,  infra. 

a  See  Equity  Rule  54  with  Annotations,  in  Appendix,  post. 


§  504  DEPOSITIONS  289 

Revised  Statutes.  But  if  in  any  case  no  notice  has  been 
given  the  opposite  party  of  the  time  and  place  of  taking 
the  deposition,  he  shall,  upon  application  and  notice,  be  en- 
titled to  have  the  witness  examined  orally  before  the  court 
or  to  a  cross-examination  before  an  examiner  or  like  officer, 
or  a  new  deposition  taken  with  notice,  as  the  court  or  judge 
under  all  the  circumstances  shall  order." 

It  will  be  noted  from  the  above,  that  depositions  taken  in  equity 
suits  de  bene  esse  or  on  commission  under  the  Federal  statutes 
are  only  so  taken  after  the  cause  is  at  issue.  If  necessity  exists 
for  taking  depositions  before  cause  is  at  issue,  such  depositions 
should  be  taken  under  Rule  47  on  affidavit  showing  good  and  ex- 
ceptional cause  for  departing  from  the  general  rule  and  an  order 
of  court  specifying  the  notice  and  terms  for  taking. 

Time  for  taking  depositions  in  equity  after  issue  is  set  out  in  the 
following  section: 

§  503.  Same  —  Depositions  in  Equity  after  Issue. 

Last  Pt.  Equity  Rule  47.  b  ".  .  .  All  depositions  taken 
under  a  statute,  or  under  any  such  order  of  the  court,  shall 
be  taken  and  filed  as  follows,  unless  otherwise  ordered  by  the 
court  or  judge  for  good  cause  shown:  Those  of  the  plaintiff 
within  sixty  days  from  the  time  the  cause  is  at  issue;  those  of 
the  defendant  within  thirty  days  from  the  expiration  of  the 
time  for  the  filing  of  plaintiff's  depositions  ;  and  rebutting 
depositions  by  either  party  within  twenty  days  after  the 
time  for  taking  original  depositions  expires." 

§  504.  Grounds  for  Depositions  in  Equity:  When  Allowed 
by  Statute,  or  for  Good  and  Exceptional  Cause. 

First  Pt.  Equity  Rule  47.c  "The  court,  upon  application 
of  either  party,  when  allowed  by  statute,  or  for  good  and  ex- 
ceptional cause  for  departing  from  the  general  rule,  to  be 
shown  by  affidavit,  may  permit  the  deposition  of  named  wit- 
nesses, to  be  used  before  the  court  or  upon  a  reference  to  a 
master,  to  be  taken  before  an  examiner  or  other  named  officer, 
upon  the  notice  and  terms  specified  in  the  order.  .  .  ." 


Equity  Rule  47,  with  Annotations,  in  Appendix,  post. 
Equity  Rule  47,  with  Annotations    in  Appendix,  post. 


t>  See 

«  See 

Monte.—  19. 


290        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  506 

§  505.  Depositions  de  Bene  Esse — Conditions  for  Taking 
and  Using. 

Pt.  §  863,  R.  8.,  Comp.  Stat.  1901,  p.  661,  3  F.  8.  A.  8, 
Rose's  Code,  §  1761.  "The  testimony  of  any  witness  may  be 
taken  in  any  civil  cause  depending  in  a  district  or  circuit  court 
by  deposition  de  bene  esse,  when  the  witness  lives  at  a  great- 
er distance  from  the  place  of  trial  than  one  hundred  miles, 
or  is  bound  on  a  voyage  to  sea,  or  is  about  to  go  out  of  the 
United  States,  or  out  of  the  district  in  which  the  case  is  to 
be  tried,  and  to  a  greater  distance  than  one  hundred  miles 
from  the  place  of  trial,  before  the  time  of  trial,  or  when  he 
is  ancient  and  infirm.  .  .  ." 

Last  Pt  §  865,  R.  8.,  Comp.  Stat.  1901,  p.  663,  3  F.  S.  A. 
17.  ".  .  .  But  unless  it  appears  to  the  satisfaction  of 
the  court  that  the  witness  is  then  dead,  or  gone  out  of  the 
United  States,  or  to  a  greater  distance  than  one  hundred 
miles  from  the  place  where  the  court  is  sitting,  or  that,  by 
reason  of  age,  sickness,  bodily  infirmity,  or  imprisonment, 
he  is  unable  to  travel  and  appear  at  court,  such  deposition 
shall  not  be  used  in  the  cause." 

§  506.  Officers  before  Whom  Depositions  de  Bene  Esse 
May  Be  Taken. 

Pt.  §  868,  R.  3.,  Comp.  Stat.  1901,  p.  661,  3  F.  8.  A.  8. 
".  .  .  The  deposition  may  be  taken  before  any  judge 
of  any  court  of  the  United  States,  or  any  commissioner  of 
a  circuit  court,  or  any  clerk  of  a  district  or  circuit  court, 
or  any  chancellor,  justice,  or  judge  of  a  supreme  court, 
mayor  or  chief  magistrate  of  a  city,  judge  of  a  county  court 
or  court  of  common  pleas  of  any  of  the  United  States,  or  any 
notary  public,  not  being  of  counsel  or  attorney  to  either  of 
the  parties,  nor  interested  in  the  event  of  the  cause.  .  .  ." 

Notaries  may  take  depositions. 

Act  Aug.  15,  1876,  ch.  304,  Comp.  Stat..  1901,  p.  663,  5 
F.  S.  A.  379.  "That  notaries  public  of  the  several  states, 
territories,  and  the  District  of  Columbia  be  and  they  are 
hereby,  authorized  to  take  depositions,  and  do  all  other  acts 
in  relation  to  taking  testimony  to  be  used  in  the  courts  of 
the  United  States,  take  acknowledgments  and  affidavits,  in 
the  same  manner  and  with  the  same  effect  as  commissioner 


§    507  DEPOSITIONS  291 

of  the  United  States  circuit  court  may  now  lawfully  take 
or  do."     (19  Stat.  at  L.  206.) 

§  507.  Notice  of  Taking  Depositions  de  Bene  Esse. 

PL  §  863,  R.  S.t  Comp.  Stat.  1901,  p.  661,  3  F.  8.  A.  8. 
s  ".  .  .  Reasonable  notice  must  first  be  given  in  writing  by 
the  party  or  his  attorney  proposing  to  take  such  deposition, 
to  the  opposite  party  or  his  attorney  of  record,  as  either  may 
be  nearest,  which  notice  shall  state  the  name  of  the  witness 
and  the  time  and  place  of  the  taking  of  his  deposition ;  and 
in  all  cases  in  rem,  the  person  having  the  agency  or  possession 
of  the  property  at  the  time  of  seizure  shall  be  deemed  the 
adverse  party,  until  a  claim  shall  have  been  put  in ;  and 
whenever,  by  reason  of  the  absence  from  the  district  and  want 
of  an  attorney  of  record  or  other  reason,  the  giving  of  the 
notice  herein  required  shall  be  impracticable,  it  shall  be  law- 
ful to  take  such  depositions  as  there  shall  be  urgent  necessity 
for  taking,  upon  such  notice  as  any  judge  authorized  to 
hold  courts  in  such  circuit  or  district  shall  think  reasonable 
and  direct." 

FORM  OF  NOTICE. 

In  the  District  Court  of  the  United  States  In  and  For  the   Dis- 
trict of , Division. 

John  Doe, 

Plaintiff, 

vs.  \-  NOTICE  OF  TAKING  DEPOSITIONS. 

Richard  Roe, 

Defendant. 
To  Henry  Smith,  defendant   (or  plaintiff)   or  John  Jones,  his  attorney. 

Please  take  notice  that  on    (Monday)   the   day  of   ,  1913, 

at   ....   o'clock    .  .  .  .  M.  the  deposition  de  bene  esse  of  Charles  Black,  of  the 

City  of   ,  County  of   ,  and  State  of   ,  will  be  taken 

on  behalf  of  the  plaintiff  (or  defendant)  herein,  before  Frank  Monroe,  who 
is  a  commissioner  of  the  District  Court  of  the  United  States  for dis- 
trict of (or  a  notary  public  in  and  for  the  County  of  . ,  State 

of   ,  or  other  officer  specified  in  §  863,  R.  S.)   who  is  not  of  counsel 

or  attorney  to  either  of  the  parties,  nor  interested  in  the  event  of  the  cause, 

at  his  office,   No ,   in  the   City   of    ,   County   of    , 

State  of   

The  said  witness  resides  at   ,  more  than  100  miles  from  the  place 

where  the  trial  of  this  action  will  occur,  (or  is  bound  on  a  voyage  to  sea,  or 
about  to  go  out  of  the  United  States,  or  out  of  the  district  where  the  case 
is  to  be  tried,  and  to  a  greater  distance  than  100  miles  from  the  place  of 
trial,  or  is  ancient  or  infirm.) 


292        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCKIM-HK     §  509 

The  examination  of  said  witness  will  proceed  from  day  to  day  until  com- 
pleted and  will  be  taken  under  §§  863,  864,  865,  Revised  Statutes  of  the 
United  States. 

Dated,    

> 

Attorney  for  Plaintiff    (or  Defendant). 

§  508.  Compelling  Attendance  of  Witness — Depositions 
de  Bene  Esse. 

Pt.  §  863,  R.  S.,  Comp.  Stat.  1901,  p.  661,  3  F.  8.  A.  8. 
"Any  person  may  be  compelled  to  appear  and  depose  as  pro- 
vided by  this  section,  in  the  same  manner  as  witnesses  may 
be  compelled  to  appear  and  testify  in  court." 

§  509.  Mode  of  Taking  Depositions  de  Bene  Esse. 

§  864,  R.  8.,  Comp.  Stat.  1901,  p.  063,  3  F.  S.  A.  15, 
Rose's  Code,  §  1762.  "Every  person  deposing  as  provided 
in  the  preceding  section  shall  be  cautioned  and  sworn  to  tes- 
tify the  whole  truth,  and  carefully  examined.  His  testimony 
shall  be  reduced  to  writing  or  typewriting  by  the  officer 
taking  the  deposition,  or  by  some  person  under  his  personal 
supervision,  or  by  the  deponent  himself  in  the  officer's 
presence,  and  by  no  other  person,  and  shall,  after  it  has  been 
reduced  to  writing  or  typewriting,  be  subscribed  by  the  de- 
ponent." 

FORM  OF  DEPOSITION. 

In  the  District  Court  of  the  United  States  In  and  For  the Dis- 

-    trict  of   ,    Division. 

John  Doe.  "1 

D1  .   ,.,_  DEPOSITION  OF 

Plaintiff, 

vs.  L  ' 

Richard  Roe,  Taken  on  behalf  of  Defendant   (or  Plaintiff). 


Defendant. 

State  of   

County  of    

District  of   

.    Division 


of  the  city  of  County  of and  State 

of    residing  more  than  100  miles  from  the  place  where  the  trial 

of  this  action  will  occur  (as  being  bound  on  a  voyage  to  sea,  or  about  to 
go  out  of  the  United  States,  or  out  of  the  district  where  the  case  is  to  be 
tried,  and  to  a  greater  distance  than  100  miles  from  the  place  of  trial,  or 


§  509  DEPOSITIONS  293 

being  ancient  or  infirm)  a  witness  called  on  behalf  of  the  plaintiff  (or  de- 
fendant) herein,  being  duly  cautioned  and  sworn  to  testify  the  whole  truth, 
and  being  carefully  examined,  deposes  and  says  as  follows: 

Esquire  appeared  as  attorney  for  plaintiff  and  

Esquire  appeared  as  attorney  for  defendant.  (The  testimony  on  request  of 
either  party  should  be  by  question  and  answer  otherwise  in  narrative  form.) 

Q.  1.  State  your  name  and  age. 

A. 

Q.  2.  State   your   residence. 

FORM  OF  OFFICER'S  CONCLUDING  CERTIFICATE. 

In  the  District  Court  of  the  United  States  In  and  For  the   Dis- 
trict of , Division. 

John  Doe, 
Plaintiff, 

vs. 

Richard  Roe, 
Defendant. 


State  of   1 


County  of    

District  of f 

Division 

I  hereby  certify  that  on  the  ....   day  of ,  . .  . . ,  before  me, 

a  commissioner  of  the  United  States  for  the   District  of 

(or  other  official  designation)   at  my  office  No in  the 

city  of  county  of  State  of  personally  ap- 
peared, pursuant  to  the  notice  hereto  annexed,  between  the  hours  of  

o'clock  ....   M.  and  ....   o'clock   ....   M. ,  the  witness  named 

in  said  notice,  and   Esquire  appearing  for  plaintiff  and   

Esquire  appearing  for  defendant,  and  the  said    being  by  me 

first  duly  cautioned  and  sworn  to  testify  the  whole  truth,  and  being  care- 
fully examined,  deposed  and  said  as  in  the  foregoing  annexed  deposition  set 
out. 

I  further  certify  that  said  deposition  was  begun  on  the  ....   day  of , 

and  continued  from  day  to  day  until  the  ....  day  of , 

when  same  was  completed. 

I  further  certify  that  the  several  exhibits  attached  to  said  deposition,  were 
offered  in  evidence  and  marked  for  identification  as  is  set  out  in  said  deposi- 
tion. 

I  further  certify  that  the  said  deposition  was  then  and  there  reduced  to 
writing  (or  typewriting)  by  me  (or  under  my  personal  supervision,  or  by 
the  witness  in  my  presence),  and  was,  after  it  had  been  reduced  to  writing 
(or  typewriting),  subscribed  by  the  witness,  and  the  same  has  been  retained 
by  me  for  the  purpose  of  sealing  up  and  directing  the  same  to  the  clerk 
of  the  court  as  required  by  law. 

J   further  certify  that  the  reason  why  the  said  deposition  was  taken  was 


204        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  512 

that  the  said  witness  resides  at  more  than  one  hundred  miles 

from  the  place  where  this  cause  is  to  be  tried  (or  other  reason, 

specified  §  863,  R.  S.). 

I  further  certify  that  I  am  not  of  counsel  or  attorney  to  either  of  the 
parties,  nor  am  1  interested  in  the  event  of  the  cause. 

I  further  certify  that  the  fee  for  taking  said  deposition,  $.  .  .  .  has  been 
paid  to  me  by  the  plaintiff  (or  defendant),  and  the  same  is  just  and  reason- 
able. 

WITNESS  my  hand  and  official  seal  at   this   . .   day  of   


[Seal] 

••••••••••» 

Title. 

§  510.  Equity  Rule  as  to  Form  of  Deposition. 

Equity  Rule  1+9.A  ''All  evidence  offered  before  an  ex- 
aminer or  like  officer,  together  with  any  objections,  shall  be 
saved  and  returned  into  the  court.  Depositions,  whether  up- 
on oral  examination  before  an  examiner  or  like  officer  or 
otherwise,  shall  be  taken  upon  questions  and  answers  re- 
duced to  writing,  or  in  the  form  of  narrative,  and  the  wit- 
nesses shall  be  subject  to  cross  and  re-examination." 

§  511.  Equity  Rule  as  to  Objections  to  Evidence. 

Pt.  Equity  Rule  51*  "Objections  to  the  evidence,  before 
an  examiner  or  like  officer,  shall  be  in  short  form,  stating 
the  grounds  of  objection  relied  upon,  but  no  transcript  filed 
by  such  officer  shall  include  argument  or  debate.  .  .  .  Ob- 
jection to  any  question  or  questions  shall  be  noted  by  the 
officer  upon  the  deposition,  but  he  shall  not  have  power  to  de- 
cide on  the  competency  or  materiality  or  relevancy  of  the 
questions.  The  court  shall  have  power,  and  it  shall  be  its 
duty,  to  deal  with  the  costs  of  incompetent  and  immaterial 
or  irrelevant  depositions,  or  parts  of  them,  as  may  be  just." 

§  512.  Equity  Rule  as  to  Signing  Deposition. 

Pt.  Equity  Rule  51*  ".  .  .  The  testimony  of  each 
witness,  after  being  reduced  to  writing,  shall  be  read  over  to 
or  by  him,  and  shall  be  signed  by  him  in  the  presence  of  the 
officer:  Provided,  That  if  the  witness  shall  refuse  to  sign  his 
deposition  so  taken,  the  officer  shall  sign  the  same,  stating 

«1  See  Equity  Rule  49,  with  Annotations,  in  Appendix,  post. 
«  See  Equity  Rule  51,  with  Annotations,  in  Appendix,  post. 
*  See  Equity  Rule  51,  with  Annotations,  in  Appendix,  post. 


§    515  DEPOSITIONS  295 

upon  the  record  the  reasons,  if  any,  assigned  by  the  witness 
for  such  refusal.     .     .    ." 

§  513.  Delivery  into  Court  of  Depositions  de  Bene  Esse. 
Pi.  §  865,  R.  8.,  Comp.  8 tat.  1901,  p.  663,  3  F.  S.  A.  p.  17. 
"Every  deposition  taken  under  the  two  preceding  sections 
(863—4,  li.  S. )  shall  be  retained  by  the  magistrate  taking  it, 
until  he  delivers  it  with  his  own  hand  into  the  court  for 
which  it  is  taken;  or  it  shall,  together  with  a  certificate  of 
the  reasons  as  aforesaid  of  taking  it  and  of  the  notice,  given 
to  the  adverse  party,  be  by  him  sealed  up  and  directed  to 
such  court,  and  remain  under  his  seal  until  opened  in  court. 


§  514.  Depositions  under  a  Commission. 

§  866,  R.  S.,  Comp.  StaL  1901,  p.  663,  3  F.  S.  A.  20, 
Rose's  Code,  §  1765.  "(Depositions  under  a  dedimus  po- 
testatem  and  in  perpetuan,  etc.)  In  any  case  where  it  is 
necessary,  in  order  to  prevent  a  failure  or  delay  of  justice, 
any  of  the  courts  of  the  United  States  may  grant  a  dedimus 
potestatem  to  take  depositions  according  to  common  usage; 
and  any  circuit  court,  upon  application  to  it  as  a  court  of 
equity,  may,  according  to  the  usages  of  chancery,  direct  dep- 
ositions to  be  taken  in  perpetuam  rei  memoriam,  if  they 
relate  to  any  matters  that  may  be  cognizable  in  any  court 
of  the  United  States.  And  the  provisions  of  sections  eight, 
hundred  and  sixty-three,  eight  hundred  and  sixty-four,  and 
eight  hundred  and  sixty-five,  shall  not  apply  to  any  deposi- 
tion to  be  taken  under  the  authority  of  this  section." 

§  515.  Witnesses  Exempt  from  Attendance-^Depositions 
under  a  Commission. 

§  870,  R.  8.,  Comp.  Stat.  1901,  p.  665,  3  F.  8.  A.  24, 
Rose's  Code,  §  .7769.  "No  witness  shall  be  required,  under 
the  provisions  of  either  of  the  two  preceding  sections  (§§ 
868,  869,  R.  S.),  to  attend  at  any  place  out  of  the  county 
where  he  resides,  nor  more  than  forty  miles  from  the  place  of 
his  residence,  to  give  his  deposition ;  nor  shall  any  witness 
be  deemed  guilty  of  contempt  for  disobeying  any  subpoena 
directed  to  him  by  virtue  of  the  said  sections,  unless  his  fee 
for  going  to,  returning  from,  and  one  day's  attendance  at 
the  place  of  examination,  are  paid  or  tendered  to  him  at  the 
time  of  the  service  of  the  subpoena." 


MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  517 

§  516.  Compelling  Attendance  and  Testimony  of  Witness- 
es for  Depositions  under  Commission. 

§  868,  R.  S.,  Comp.  Stat.  1901,  p.  664,  3  F.  8.  A.  23, 
Rose's  Code,  §  1767.  "When  a  commission  is  issued  by  any 
court  of  the  United  States  for  taking  the  testimony  of  a  wit- 
ness named  therein  at  any  place  within  any  district  or  terri- 
tory, the  clerk  of  any  court  of  the  United  States  for  such  dis- 
trict or  territory  shall,  on  the  application  of  either  party  to 
the  suit,  or  of  his  agent,  issue  a  subpoena  for  such  witness, 
commanding  him  to  appear  and  testify  before  the  commis- 
sioner named  in  the  commission,  at  a  time  and  place  stated 
in  the  subposna ;  and  if  any  witness,  after  being  duly  served 
with  such  subpoena,  refuses  or  neglects  to  appear,  or,  after 
appearing,  refuses  to  testify,  not  being  privileged  from  giv- 
ing testimony,  and  such  refusal  or  neglect  is  proven  to  the 
satisfaction  of  any  judge  of  the  court  whose  clerk  issues  such 
subposna,  such  judge  may  proceed  to  enforce  obedience  to  the 
process,  or  punish  the  disobedience,  as  any  court  of  the 
United  States  may  proceed  in  case  of  disobedience  to  process 
of  subpoena  to  testify  issued  by  such  court/' 

§  517.  Compelling  Production  of  Papers,  Written  Instru- 
ments, Books,  or  Documents  in  Taking  Depositions  under  a 
Commission. 

§  869,  R.  8.,  Comp.  Stat  1901,  p.  665,  3  F.  S.  A.  24  Roses 
Code,  §  1768.  "(Subpoena  duces  tecum  under  a  dedimus  po- 
testatem.)  When  either  party  in  such  suit  applies  to  any 
judge  of  a  United  States  court  in  such  district  or  territory 
for  a  subpoena  commanding  the  witness,  there  to  be  named,  to 
appear  and  testify  before  said  commissioner,  at  the  time  and 
place  to  be  stated  in  the  subposna,  and  to  bring  with  him  and 
produce  to  such  commissioner  any  paper  or  writing  or  written 
instrument  or  book  or  other  document,  supposed  to  be  in  the 
possession  or  power  of  such  witness,  and  to  be  described  in  the 
subpoena,  such  judge,  on  being  satisfied  by  the  affidavit  of 
the  person  applying,  or  otherwise,  that  there  is  reason  to  be- 
lieve that  such  paper,  writing,  written  instrument,  book,  or 
other  document  is  in  the  possession  or  power  of  the  witness, 
and  that  the  same,  if  produced,  would  be  competent  and 
material  evidence  for  the  party  applying  therefor,  may  or- 
der the  clerk  of  said  court  to  issue  such  subposna  •accordingly. 
And  if  the  witness,  after  being  served  with  such  subpoena, 
fails  to  produce  to  the  commissioner  at  the  time  and  place 


§    520  DISPOSITIONS 

stated  in  the  subpoena,  any  such  paper,  writing,  written  in- 
strument, book,  or  other  document,  being  in  his  possession  or 
power,  and  described  in  the  subpoena,  and  such  failure  is 
proved  to  the  satisfaction  of  said  judge,  he  may  proceed  to 
enforce  obedience  to  said  process  of  subpoena,  or  punish  the 
disobedience  in  like  manner  as  any  court  of  the  United 
States  may  proceed  in  case  of  disobedience  to  like  process 
issued  by  such  court.  When  any  such  paper,  writing,  written 
instrument,  book,  or  other  document  is  produced  to  such 
commissioner,  he  shall,  at  the  cost  of  the  party  requiring  the 
same,  cause  to  be  made  a  correct  copy  thereof,  or  of  so  much 
thereof  as  shall  be  required  by  either  of  the  parties." 

§  518.  Depositions  to  Perpetuate  Testimony  under  State 
Laws — Admissible  in  Court's  Discretion. 

§  867,  R.  S.t  Comp.  Stat.  1901,  p.  664,  3  F.  S.  A.  23, 
Rose's  Code,  §  1766.  "Any  court  of  the  United  States  may, 
in  its  discretion,  admit  in  evidence  in  any  cause  before  it 
any  deposition  taken  in  perpetuam  rei  memoriam,  which 
would  be  so  admissible  in  a  court  of  the  state  wherein  such 
cause  is  pending,  according  to  the  laws  thereof." 

§  519.  Depositions  May  Be  Taken  in  Mode  Prescribed  by 
State  Law. 

Act  March  9,  1892,  cli.  14,  Comp.  Stat.  1901,  p.  664,  3 
F.  8.  A.  22.  "That  in  addition  to  the  mode  of  taking  the 
depositions  of  witnesses  in  causes  pending  at  law  or  equity 
in  the  district  and  circuit  courts  of  the  United  States,  it 
shall  be  lawful  to  take  the  depositions  or  testimony  of  wit- 
nesses in  the  mode  prescribed  by  the  law  of  the  state  in 
which  the  courts  are  held." 

§  520.  Depositions  in  Equity  under  Court  Order  before 
Commissioner,  Master,  or  Examiner. 

Equity  Rule  52.K  "Witnesses  who  live  within  the  district, 
and  whose  testimony  may  be  taken  out  of  court  by  these 
rules,  may  be  summoned  to  appear  before  a  commissioner 
appointed  to  take  testimony,  or  before  a  master  or  examiner 
appointed  in  any  cause,  by  subpoena  in  the  usual  form, 
which  may  be  issued  by  the  clerk  in  blank  and  filled  up  by  thr; 

8  See  Equity  Rule  52,  with  Annotations,  in  Appendix,  post. 


298        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  523 

party  praying  the  same,  or  by  the  commissioner,  master,  or 
examiner,  requiring  the  attendance  of  the  witnesses  at  the 
time  and  place  specified,  who  shall  be  allowed  for  attend- 
ance the  same  compensation  as  for  attendance  in  court;  and 
if  any  witness  shall  refuse  to  appear  or  give  evidence  it 
shall  be  deemed  a  contempt  of  the  court,  which  being  cer- 
tified to  the  clerk's  office  by  the  commissioner,  master,  or 
examiner,  an  attachment  may  issue  thereupon  by  order  of  the 
court  or  of  any  judge  thereof,  in  the  same  manner  as  if 
the  contempt  were  for  not  attending,  or  for  refusing  to 
give  testimony  in  the  court. 

"In  case  of  refusal  of  witnesses  to  attend  or  be  sworn  or  to 
answer  any  question  put  by  the  commissioner,  master  or 
examiner  or  by  counsel  or  solicitor,  the  same  practice  shall 
be  adopted  as  is  now  practiced  with  respect  to  witnesses  to 
be  produced  on  examination  before  an  examiner  of  said 
court  on  written  interrogatories." 

§  521.  Same— Notice. 

Equity  Rule  53.^  "Notice  shall  be  given  by  the  re- 
spective counsel  or  parties  to  the  opposite  counsel  or  parties 
of  the  time  and  place  of  examination  before  an  examiner  or 
like  officer  for  such  reasonable  time  as  the  court  or  officer 
may  fix  by  order  in  each  case."  'v  ^ "' 

§  522.  Deposition  in  Equity  Published  on  Filing. 

Equity  Rule  55.1  "Upon  the  filing  of  any  deposition  or 
affidavit  taken  under  these  rules  or  any  statute,  it  shall  be 
deemed  published,  unless  otherwise  ordered  by  the  court." 

§  523.  Letters  Rogatory  or  Commissions  to  Take  Deposi- 
tions of  Witnesses  in  Foreign  Countries. 

§  875,  R.  S.,  Comp.  Stat.  1901,  p.  667 ,  3  F.  8.  A.  25, 
Rose's  Code,  §  1774-  "When  any  commission  or  letter  roga- 
tory,  issued  to  take  the  testimony  of  any  witness  in  a  foreign 
country,  in  airy  suit  in  which  the  United  States  are  parties 
or  have  an  interest,  is  executed  by  the  court  or  the  com- 
missioner to  whom  it  is  directed,  it  shall  be  returned  by 
such  court  or  commissioner  to  the  minister  or  consul  of  the 
United  States  nearest  the  place  where  it  is  executed.  On  re- 
ceiving the  same,  the  said  minister  or  consul  shall  indorse 

l»  See   Equity   Rule  53,  with   Annotations,   in   Appendix,  post. 
*  See  Equity  Rule  55,  with  Annotations,  in  Appendix,  post. 


§  524  DEPOSITIONS  299 

thereon  a  certificate,  stating  when  and  where  the  same  was 
received,  and  that  the  said  deposition  is  in  the  same  condition 
as  when  he  received  it;  and  he  shall  thereupon  transmit  the 
said  letter  or  commission,  so  executed  and  certified,  by  mail, 
to  the  clerk  of  the  court  from  which  the  same  issued,  in  the 
manner  in  which  his  official  dispatches  are  transmitted  to  the 
government.  And  the  testimony  of  witnesses  so  taken  and  re- 
turned shall  be  read  as  evidence  on  the  trial  of  the  suit  in 
which  it  was  taken,  without  objection  as  to  the  method  of  re- 
turning the  same.  When  letters  rogatory  are  addressed  from 
any  court  of  a  foreign  country  to  any  circuit  court  of  the 
United  States,  a  commissioner  of  such  circuit  court  designated 
by  said  court  to  make  an  examination  of  the  witnesses  men- 
tioned in  said  letters,  shall  have  power  to  compel  the  wit- 
nesses to  appear  and  depose  in  the  same  manner  as  witnesses 
may  be  compelled  to  appear  and  testify  in  courts." 

§  524.  Taking  Testimony  to  Be  Used  in  Foreign  Coun- 
tries. 

§  4071,  R.  S.f  Comp.  Stat.  1901,  p.  27-63,  3  F.  8.  A.  41, 
Rose's  Code,  §  1750.  "The  testimony  of  any  witness  re- 
siding within  the  United  States,  to  be  used  in  any  suit  for 
the  recovery  of  money  or  property  depending  in  any  court 
in  any  foreign  country  with  which  the  United  States  are 
at  peace,  and  in  which  the  government  of  such  foreign 
country  shall  be  a  party  or  shall  have  an  interest,  may  be 
obtained,  to  be  used  in  such  suit.  If  a  commission  or  letters 
rogatory  to  take  such  testimony,  together  with  specific  written 
interrogatories,  accompanying  the  same,  and  addressed  to 
such  witness,  shall  have  been  issued  from  the  court  in 
which  such  suit  is  pending,  on  producing  the  same  before 
the  district  judge  of  any  district  where  the  witness  resides 
or  shall  be  found,  and  on  due  proof  being  made  to  such 
judge  that  the  testimony  of  any  witness  is  material  to  the 
party  desiring  the  same,  such  judge  shall  issue  a  summons 
to  such  witness  requiring  him  to  appear  before  the  officer 
or  commissioner  named  in  such  commission  or  letters  rog- 
atory, to  testify  in  such  suit.  And  no  witness  shall  be 
compelled  to  appear  or  to  testify  under  this  section  i  except 
for  the  purpose  of  answering  such  interrogatories  so  issued 
and  accompanying  such  commission  or  letters:  Provided, 
That  when  counsel  for  all  the  parties  attend  the  examina- 
tion, they  may  consent  that  questions  in  addition  to  those 


300         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  526 

accompanying  the  commission  or  letters  rogatory  may  be 
put  to  the  witness,  unless  the  commission  or  letters  rogatory 
exclude  such  additional  interrogatories  The  summons 
shall  specify  the  time  and  place  at  which  the  witness  is  re- 
quired to  attend,  which  place  shall  be  within  one  hundred 
miles  of  the  place  where  the  witness  resides  or  shall  be 
served  with  such  summons." 

§  525.  Same — Witness  Need  Not  Criminate  Himself. 

§  4072,  R.  S.f  Comp.  Stat.  1901,  p.  2764,  3  F.  8.  A.  42, 
Rose's  Code,  §  1151.  "No  witness  shall  be  required,  on 
such  examination  or  any  other  under  letters  rogatory,  to 
make  any  disclosure  or  discovery  which  shall  tend  to  crim- 
inate him  either  under  the  laws  of  the  state  or  territory 
within  which  such  examination  is  had,  or  any  other,  or  any 
foreign  state." 

§  526.  Publicity  in  Taking  Depositions  in  Anti-trust  Cases. 

Act  March  3,  1913,  ch.  114,  37  Stat.  at  L.  731.  "That  in 
the  taking  of -depositions  of  witnesses  for  use  in  any  suit  in 
equity  brought  by  the  United  States  under  the  act  entitled 
'An  Act  to  Protect  Trade  and  Commerce  against  Unlawful 
Restraints  and  Monopolies,'  approved  July  second,  eighteen 
hundred  and  ninety,  and  in  the  hearings  before  any  examiner 
or  special  master  appointed  to  take  testimony  therein,  the 
proceedings  shall  be  open  to  the  public  as  freely  as  are  trials 
in  open  court;  and  no  order  excluding  the  public  from  at- 
tendance on  any  such  proceedings  shall  be  valid  or  enforce- 
able." 


CHAPTER  17. 

COSTS  AND  FEES. 


Sec. 

530.  In  General. 

531.  Taxable  Costs  and  Fees. 

532.  Bill  of  Costs. 

533.  Same — Must  be  Verified. 

534.  Costs — Indigent  Parties. 

535.  Payment  of  Costs  and  Witness  Fees  for  Indigent  Defendant  in  Criminal 

Cases. 

536.  Costs  Not  Allowed  for  Recovery  Less  than  $500,  where  Amount  in  Con- 

troversy Material  or  Libelant  Recovers  Less  than  $300. 

537.  Costs  Where  Cases  Can  be  Consolidated. 

538.  Mode  of  Recovery  of  Fees. 

539.  Fees  of  Attorneys,  Solicitors,  Proctors. 

540.  Attorney's  Liability  for  Costs  Vexatiously  Increased. 

541.  Fees — Salary — United  States  District  Attorney. 

542.  Clerks'   Fees. 

543.  Marshals'   Fees. 

544.  Attorneys,  Clerks,  and  Marshals'  Fees  under  Civil  Rights  Laws. 

545.  Fees  of  United  States  Commissioners. 

546.  Same — Under  Chinese  Exclusion  Laws. 

547.  Costs  and  Witness  Fees  in  Extradition  Cases. 

548.  Witnesses'   Fees. 

549.  Court  Officer  Not  Entitled  to  Witness  Fees. 

550.  Witness  Fees  Depositions  in  District  of  Columbia. 

551.  Same — Under  Letters  Rogatory  from  a  Foreign  Country. 

552.  Witness  Fees  of  Seamen  Sent  Home  to  Give  Testimony  in  Criminal  Cases. 

553.  United  States  Liable  for  Only  Four  Witness  Fees  on  Preliminary  Crim- 

inal Examination. 

554.  Witness  Fees  in  Prize  Cases — How   Paid. 

555.  Juror  Fees — Grand  and  Petit. 

556.  Mode  of  Payment  Juror  and  Witness  Fee8. 

557.  Printer's  Fees. 

558.  Same — Folio  Denned. 

559.  Appraiser's  Fees  on  Execution  Sales. 

560.  No   Costs    against   United    States    in   Internal    Revenue   Suits   upon   In- 

formation. 

301 


302         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  531 

Sec. 

561.  No  Costs  against  Prosecutor  nor  for  Claimant  When  Eeasonable  Cause 

for  Seizure. 

562.  Successful  Claimant  Entitled  to  Possession  When  His  Own  Costs  Paid. 

563.  Double    Costs    against    Nonsuited    Plaintiff    in    Action    against    Revenue 

Officer. 

564.  Defendant  Subjected  to  Fine,  Forfeiture,  or  Conviction  shall  Pay  Costs 

of  Prosecution. 

565.  Defendant  to  be  Awarded  Costs  if  Informer  on  Penal  Statute  Nonsuited 

or  Discontinues. 

566.  Informer  on  Penal  Statute  to  Pay  Costs  if  Nonsuit  or  Discontinuance. 

567.  Costs  in  Copyright  Suits. 

568.  Costs  on  Infringement  of  Patent. 

§  530.  In  General.  Costs  and  fees  of  actions  or  suits  pend- 
ing or  determined  in  the  Federal  courts  are  regulated  by  the 
Federal  statutes.1  On  removal  the  costs  that  have  accrued  in  the 
state  court  under  state  statutes  will  be  taxable  in  the  Federal 
courts,2  and  the  costs  provided  by  state  statutes  will  be  taxed 
in  the  Federal  courts,  for  statutory  proceedings  adopted  by  the 
Federal  courts  from  the  state  practice.8  Where  the  state  statute 
provides  that  a  nonresident  shall  give  security  for  costs,  the 
Federal  courts  will  enforce  same  in  a  common-law  action.4 

§  531.  Taxable  Costs  and  Fees. 

§  823,  R.  S.,  Comp.  Stat.  1901,  p.  632,  2  F.  8.  A.  276, 
Rose's  Code,  §  705.  "The  following  and  no  other  compen- 
sation shall  be  taxed  and  allowed  to  attorneys,  solicitors, 
and  proctors  in  the  courts  of  the  United  States,  to  district 
attorneys,  clerks  of  the  circuit  and  district  courts,  marshals, 
commissioners,  witnesses,  jurors,  and  printers  in  the  sev- 
eral states  arid  territories,  except  in  cases  otherwise  express- 
ly provided  by  law.  But  nothing  herein  shall  be  construed 
to  prohibit  attorneys,  solicitors,  and  proctors  from  charging 
to  and  receiving  from  their  clients,  other  than  the  govern- 
ment, such  reasonable  compensation  for  their  services,  in 

1  Bradford   v.   Bradford,   2    Flipp.   280.    Fed.   Cas.   No.   1,766;    Heckman   v. 
Mackey,  32  Fed.  574;  Carlisle  v.  Cooper,  64  Fed.  475,  12  C.  C.  A.  235. 

2  Cleaver  v.  Traders'  Ins.  Co.  40  Fed.  863 ;   Wolf  v.  Connecticut,  etc.  Ins. 
Co.    1    Flipp.    377,    Fed.    Cas.    No.    17,924,    1    Cent.    Law   J.    301;    Gunther   v. 
Liverpool,  etc.,  Ins.  Co.  10  Fed.  830,  20  Blatchf.  390;  National  Steamship  Co. 
v.  Tugman,  67  Fed.  16. 

3  Huntress    v.    Epsom,    15    Fed.    732 ;    Morrison   v.    Bernards,    Tp.    35    Fed. 
400;   N.  H.  L.  Co.  v.  Tilton,  20  Fed.  764. 

4  Henning  v.  Western  Union  Tel.  Co.  40  Fed.   658.     See  also  Schofield  v. 
Palmer,  134  Fed.  754;   Winkley  Co.  v.  Bowen,  Mfg.  Co.  180  Fed.  624. 


§    534  COSTS  AND  FEES  303 

addition  to  the  taxable  costs,  as  may  be  in  accordance  with 
general  usage  in  their  respective  states,  or  may  be  agreed 
upon  between  the  parties." 

§  532.  Bill  of  Costs. 

§  983,  R.  8.,  Comp.  Stat.  1901,  p.  706,  2  F.  S.  A.  291, 
Rose's  Code,  §  1839.  "The  bill  of  fees  of  the  clerk,  mar- 
shal, and  attorney,  and  the  amount  paid  printers  and  wit- 
nesses, and  lawful  fees  for  exemplifications  and  copies  of 
papers  necessarily  obtained  for  use  on  trials  of  cases  where- 
by law  costs  are  recoverable  in  favor  of  the  prevailing  party, 
shall  be  taxed  by  a  judge  or  clerk  of  the  court,  and  be  in- 
cluded in  and  form  a  portion  of  a  judgment  or  decree  against 
the  losing  party.  Such  taxed  bills  shall  be  filed  with  the 
papers  in  the  cause." 

§  533.  Same— Must  be  Verified. 

§  984,  R.  8.,  Comp.  Stat.  1901,  p.  106,  2  F.  8.  A.  293, 
Rose's  Code,  §  1840.  "Before  any  bill  of  costs  shall  be 
taxed  by  any  judge  or  other  officer,  or  allowed  by  any  officer 
of  the  Treasury,  in  favor  of  clerks,  marshals,  commission- 
ers, or  district  attorneys,  the  party  claiming  such  bill  shall 
prove  by  his  own  oath,  or  that  of  some  other  person  having 
knowledge  of  the  facts,  to  be  attached  to  such  bill,  and  filed 
therewith,  that  the  services  charged  therein  have  been  actu- 
ally and  necessarily  performed,  as  therein  stated." 

§  534.  Costs — Indigent  Parties. 

Act  June  25,  1910,  cli.  435,  Comp.  St.  1911,  p.  274, 
1912  Supp.  F.  S.  A.  v.  1,  p.  4,  amending  §  1,  Act  July 
20,  1892,  ch.  209,  Comp.  St.  1901,  p.  706,  2  F.  8.  A.  294, 
Rose's  Code,  §  1823.  "That  any  citizen  of  the  United 
States  entitled  to  commence  or  defend  any  suit  or  action, 
civil  or  criminal,  in  any  court  of  the  United  States,  may, 
upon  the  order  of  the  court,  commence  and  prosecute  or  de- 
fend to  conclusion  any  suit  or  action,  or  a  writ  of  error,  or 
an  appeal  to  the  circuit  court  of  appeals,  or  to  the  Supreme 
Court  in  such  suit  or  action,  including  all  appellate  pro- 
ceedings, unless  the  trial  court  shall  certify  in  writing  that 
in  the  opinion  of  the  court  such  appeal  or  writ  of  error  is 
not  taken  in  good  faith,  without  being  required  to  prepay 
fees  or  costs  or  for  the  printing  of  the  record  in  the  appel- 
late court  or  give  security  therefor,  before  or  after  bring- 


304         MONT<JOMKKY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  535 

ing  suit  or  action,  or  upon  suing  out  a  writ  of  error  or  ap- 
pealing, upon  filing  in  said  court  a  statement  under  oath  m 
writing  that  because  of  his  poverty  he  is  unable  to  pay 
the  costs  of  said  suit  or  action  or  of  such  writ  or  error  or 
appeal,  or  to  give  security  for  the  same,  and  that  he  believes 
that  he  is  entitled  to  the  redress  he  seeks  by  such  suit  or 
action  or  writ  of  error  or  appeal,  and  setting  forth  briefly 
the  nature  of  his  alleged  cause  of  action,  or  appeal."  (36 
Stat.  at  L.  866.) 

§  2,  Act  July  20,  1892,  ch.  209,  Comp.  Stat.  1901,  p.  707, 
2  F.  S.  A.  294,  Roses  Code,  §  1824.  "After  any  such  suit 
or  action  shall  have  been  brought,  or  that  is  now  pending, 
the  plaintiff  may  answer  and  avoid  a  demand  for  fees  or 
security  for  costs  by  filing  a  like  affidavit,  and  wilful  false 
swearing  in  any  affidavit  provided  for  in  this  or  the  previ- 
ous section,  shall  be  punishable  as  perjury  in  other  cases." 

§  3,  Ad  July  20,  1892,  ch.  209,  Comp'.  Stat.  1901,  p.  707, 
2  F.  8.  A.  294,  Rose's  Code,  §  1825.  "The  officers  of  such 
court  shall  issue,  serve  all  process,  and  perform  all  duties 
in  such  cases,  and  witnesses  shall  attend  as  in  other  cases, 
and  the  plaintiff  shall  have  the  same  remedies  as  are  pro- 
vided by  law  in  other  cases." 

§  4,  Act  July  20,  1892,  ch.  209,  Comp.  Stat.  1901,  p.  707, 
2  F.  S.  A.  294,  Rose's  Code,  1826.  "The  court  may  request 
any  attorney  of  the  court  to  represent  such  poor  person,  if  it 
deems  the  cause  worthy  of  a  trial,  and  may  dismiss  any  such 
cause  so  brought  under  this  act  if  it  be  made  to  appear  that 
the  allegation  of  poverty  is  untrue,  or  if  said  court  be  satis- 
fied that  the  alleged  cause  of  action  is  frivolous  or  malicious. 
Judgment  may  be  rendered  for  costs  at  the  conclusion  of  the 
suit,  as  in  other  cases:  Provided,  That  the  United  States 
shall  not  be  liable  for  any  of  the  costs  thus  incurred." 

§  535.  Payment  of  Costs  and  Witness  Fees  for  Indigent 
Defendant  in  Criminal  Cases. 

PL  §  878,  R.  S.,  Comp.  Stat.  1901,  p.  668,  7  F.  S.  A. 
1122,  Rose's  Code,  §741  (§  484,  infra).  ".  .  .  In  such 
case  the  costs  incurred  by  the  process  and  the  fees  of  the 
witnesses  shall  be  paid  in  the  same  manner  that  similar 
costs  and  fees  are  paid  in  case  of  witnesses  subposnaed  in 
behalf  of 'the  United  States." 


§    537  COSTS  AND  FEES  305 

§  536.  Costs  Not  Allowed  for  Recovery  Less  than  $500, 
Where  Amount  in  Controversy  Material  or  Libelant  Recov- 
ers Less  than  $300.  By  §  291,  Judicial  Code,  the  powers  and 
duties  of  the  former  circuit  courts  are  conferred  on  the  district 
Courts. 

§  968,  R.  8.,  Comp.  Stat.  1901,  p.  702,  2  F.  S.  A.  285,  Rose's 
Code,  §  1827,  confers  on  the  circuit  courts  authority  to  impose 
costs  where  recovery  is  less  than  a  specified  amount.  As  this  sec- 
tion is  not  expressly  repealed  it  would  seem  that  when  in  a  district 
court  "a  plaintiff  in  an  action  at  law  originally  brought  there, 
or  a  petitioner  in  equity,  other  than  the  United  States,  recovers  less 
than  the  sum  or  value  of  five  hundred  dollars,  exclusive  of  costs,  in 
a  case  that  cannot  be  brought  there  unless  the  amount  in  dispute, 
exclusive  of  costs,  exceeds  said  sum  or  value ;  or  a  libelant,  upon 
his  own  appeal,  recovers  less  than  the  sum  or  value  of  three  hundred 
dollars,  exclusive  of  costs,  he  shall  not  be  allowed,  but  at  the  dis- 
cretion of  the  court,  may  be  adjudged  to  pay  costs." 

§  537.  Costs  Where  Cases  Can  be  Consolidated. 

§  921,  R.  S.,  Comp.  Stat.  1901,  p.  685,  4  F.  S.  A.  587, 
Rose's  Code,  §  1833.  "When  causes  of  a  like  nature  or 
relative  to  the  same  question  are  pending  before  a  court  of 
the  United  States,  or  of  any  territory,  the  court  may  make 
such  orders  and  rules  concerning  proceedings  therein  as  may 
be  conformable  to  the  usages  of  courts,  for  avoiding  un- 
necessary costs  or  delay  in  the  administration  of  justice." 

§  977,  R.  S.,  Comp.  Stat.  1901,  p.  704,  2  F.  S.  A.  290, 
Rose's  Code,  §  18S2.  "If  several  actions  or  processes  are 
instituted,  in  a  court  of  the  United  States  or  one  of  the 
territories,  against  persons  who  might  legally  be  joined  in 
one  action  or  process  touching  the  matter  in  dispute, .  the 
party  pursuing  the  same  shall  not  recover,  on  all  of  the 
judgments  therein  which  may  be  rendered  in  his  favor,  the 
costs  of  more  than  one  action  or  process,  unless  special  cause 
for  said  several  actions  or  processes  is  satisfactorily  shown  on 
motion  in  open  court." 

§  978,  R.  S.,  Comp.  Stat.  1901,  p.  704,  2  F.  S.  A.  290, 
Rose's  Code,  §  1834-  "When  proceedings  are  had  before  a 
court  of  the  United  States  or  of  the  territories,  on  several 

Montg.— 20. 


306         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  539 

libels  against  any  vessel  and  cargo,  which  might  legally  be 
joined  in  one  libel,  there  shall  not  be  allowed  thereon  more 
costs  than  on  one  libel,  unless  special  cause  for  libeling  the 
vessel  and  cargo  separately  is  satisfactorily  shown  on  motion 
in  open  court.  And  in  proceedings  on  several  libels  or  in- 
formations against  any  cargo  or  parts  of  cargo,  or  mer- 
chandise seized  as  forfeited  for  the  same  cause,  there  shall 
not  be  allowed  more  costs  than  would  be  lawful  on  one 
libel  or  information,  whatever  may  be  the  number  of  owners 
or  consignees  therein  concerned.  But  allowance  may  be 
made  on  one  libel  or  information  for  the  costs  incidental  to 
several  claims." 

§  538.  Mode  of  Recovery  of  Fees. 

§  857,  R.  S.,  Comp.  Stat.  1901,  p.  658,  4  F.  S.  A.  127, 
Rose's  Code,  §  750.  "The  fees  and  compensations  of  the 
officers  and  persons  hereinbefore  mentioned,  except  those 
which  are  directed  to  be  paid  out  of  the  Treasury,  shall  be  re- 
covered in  like  manner  as  the  fees  of  the  officers  of  the  states 
respectively  for  like  services  are  recovered. 

§  539.  Fees  of  Attorneys,  Solicitors,  Proctors. 

§  824,  R.  S.t  Comp.  Stat.  1901,  p.  632,  4  F.  S.  A.  90  (also 
part  in  2  F.  S.  A.  278),  Rose's  Code,  §  716.  "On  a  trial 
before  a  jury,  in  civil  or  criminal  causes  or  before  referees, 
or  on  a  final  hearing  in  equity  or  admiralty,  a  docket  fee  of 
twenty  dollars:  Provided,  That  in  cases  of  admiralty  and 
maritime  jurisdiction,  where  the  libelant  recovers  less  than 
fifty  dollars,  the  docket  fee  of  his  proctor  shall  be  but  ten 
dollars. 

"In  cases  at  law,  when  judgment  is  rendered  without  a 
jury,  ten  dollars. 

"In  cases  at  law,  when  the  cause  is  discontinued,  five 
dollars. 

"For  scire  facias,  and  other  proceedings  on  recognizances, 
five  dollars. 

"For  each  deposition  taken  and  admitted  in  evidence  in  a 
cause,  two  dollars  and  fifty  cents. 

"For  services  rendered  in  cases  removed  from  a  district 
to  a  circuit  court  by  writ  of  error  or  appeal,  five  dollars. 

"For  examination  of  a  district  attorney,  before  a  judge  or 
commissioner,  of  persons  charged  with  crime,  five  dollars  a 
day  for  the  time  necessarily  employed. 


§    541  COSTS  AND  FEES  307 

"For  each  day  of  his  necessary  attendance  in  a  court  of  the 
United  States  on  the  business  of  the  United  States,  when  the 
court  is  held  at  the  place  of  his  abode,  five  dollars;  and  for 
his  attendance  when  the  court  is  held  elsewhere,  five  dollars 
for  each  day  of  the  term. 

"For  traveling  from  the  place  of  his  abode  to  the  place 
of  holding  any  court  of  the  United  States  in  his  district,  or 
to  the  place  of  any  examination  before  a  judge  or  com- 
missioner, of  a  person  charged  with  crime,  ten  cents  a  mile 
for  going  and  ten  cents  a  mile  for  returning. 

"When  an  indictment  for  crime  is  tried  before  a  jury  and 
a  conviction  is  had,  the  district  attorney  may  be  allowed,  in 
addition  to  the  attorney's  fees  herein  provided,  a  counsel  fee, 
in  proportion  to  the  importance  and  difficulty  of  the  cause, 
not  exceeding  thirty  dollars." 

§  540.  Attorney's  Liability  for  Costs  Vexatiously  In- 
creased. 

§  982,  R.  S.,  Comp.  8 tat.  1901,  p.  106,  2  F.  8.  A.  291, 
Rose's  Code,  §  1838.  "If  any  attorney,  proctor,  or  other  per- 
son admitted  to  conduct  causes  in  any  court  of  the  United 
States,  or  of  any  territory,  appears  to  have  multiplied  the 
proceedings  in  any  cause  before  such  court,  so  as  to  increase 
costs  unreasonably  and  vexatiously,  he  shall  be  required,  by 
order  of  the  court,  to  satisfy  any  excess  of  costs  so  increased." 

§  541.  Fees — Salary — United  States  District  Attorney. 

By  §  6,  Act  May  26,  1896,  ch.  252,  29  Stat.  at  L.  179,  Comp. 
Stat.  1901,  p.  611, 4  F.  8.  A.  183,  Rose's  Code,  §  745,  all  fees  and 
emoluments  authorized  by  law  to  be  paid  United  States  district  at- 
torneys shall  be  charged  as  heretofore,  and  shall  be  collected  as  far 
as  possible  and  paid  into  the  Treasury.  The  official  himself,  how- 
ever, receives  a  salary,  provided  in  §  7  of  the  act,  Comp.  St.  1901, 
p.  Gil,  4  F.  S.  A.  137,  Rose's  Code,  §  510.  The  District  of  Colum- 
bia does  not  seem  to  be  included. 

The  following  are  some  of  the  provisions :  2  %  on  all  moneys 
collected  or  realized  in  any  suit  or  proceeding  arising  under  the 
revenue  laws.  §  825,  E.  S.,  Comp.  Stat.  1901,  p.  634,  4  F.  S.  A. 
93,  Eose's  Code,  §  717. 

No  fees  allowed  on  a  bond  left  for  collection,  or  on  which  suit 
is  started,  unless  the  party  has  neglected  to  apply  for  renewal  for 


MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  542 

more  than  twenty  days  after  maturity.  §  826,  R.  S.,  Comp.  Stat. 
1901,  p.  634,  4  F.  S.  A.  94,  Rose's  Code,  §  718. 

Fees  for  defense  of  revenue  officers  do  not  seem  to  be  a  part  of 
taxable  costs.  This  provision  would  only  apply  to  District  of 
Columbia.  §  827,  R.  S.,  Comp.  Stat.  1901,  p.  634,  4  F.  S.  A.  94, 
Rose's  Code,  §  719. 

Double  fees  would  seem  to  be  taxable  in  Oregon  and  Nevada 
under  §  837,  R.  S.,  Comp.  Stat.  1901,  p.  644,  4  F.  S.  A.  122, 
Rose's  Code,  §  720. 

Where  two  or  more  indictments,  suits,  or  proceedings  should  be 
joined,  only  one  bill  of  costs  allowed.  §  980,  R.  S.,  Comp.  Stat. 
1901,  p.  705,  4  F.  S.  A.  127,  Rose's  Code,  §  1836. 

§  542.  Clerks'  Fees. 

§  828,  R.  S.,  Comp.  Stat.  1901,  p.  635,  4  F.  S.  A.  95, 
Rose's  Code,  §  706.  "For  issuing  and  entering  every  process, 
commission,  summons,  capias,  execution,  warrant,  attachment, 
or  other  writ,  except  a  writ  of  venire,  or  a  summons  or 
subpoena  for  a  witness,  one  dollar. 

"For  issuing  a  writ  of  summons  or  subpoena,  twenty-five 
cents. 

"For  filing  and  entering  every  declaration,  plea,  or  other 
paper,  ten  cents. 

"For  administering  an  oath  or  affirmation,  except  to  a 
juror,  ten  cents. 

"For  taking  an  acknowledgment,  twenty-five  cents. 

"For  taking  and  certifying  depositions  to  file,  twenty 
cents  for  each  folio  of  one  hundred  words. 

"For  a  copy  of  such  deposition  furnished  to  a  party  on 
request,  ten  cents  a  folio. 

"For  entering  any  return,  rule,  order,  continuance,  judg- 
ment, decree,  or  recognizance,  or  drawing  any  bond,  or  mak- 
ing any  record,  certificate,  return,  or  report,  for  each  folio, 
fifteen  cents. 

"For  a  copy  of  any  entry  or  record,  or  of  any  paper  on 
file,  for  each  folio,  ten  cents. 

"For  making  dockets  and  indexes,  issuing  venire,  taxing 
costs,  and  all  other  services,  on  the  trial  or  argument  of  a 
cause  where  issue  is  joined  and  testimony  given,  three  dol- 
lars. 

"For  making  dockets  and  indexes,  taxing  costs,  and  all 


§    543  COSTS  AND  FEES  309 

other  services,  hi  a  cause  where  issue  is  joined,  but  no  testi- 
mony is  given,  two  dollars. 

"For  making  dockets  and  indexes,  taxing-  costs,  and  other 
services,  in  a  cause  which  is  dismissed  or  discontinued,  or 
where  judgment  or  decree  is  made  or  rendered  without  issue, 
one  dollar. 

"For  making  dockets  and  taxing  costs,  in  cases  removed 
by  writ  of  error  or  appeal,  one  dollar. 

"For  affixing  the  seal  of  the  court  to  any  instrument,  when 
required,  twenty  cents. 

"For  every  search  for  any  particular  mortgage,  judgment, 
or  other  lien,  fifteen  cents. 

"For  searching  the  records  of  the  court  for  judgments, 
decrees,  or  other  instruments  constituting  a  general  lien  on 
real  estate,  and  certifying  the  result  of  such  search,  fifteen 
cents  for  each  person  against  whom  such  search  is  required 
to  be  made. 

"For  receiving,  keeping,  and  paying  out  money,  in  pur- 
suance of  any  statute  or  order  of  court,  one  per  centum  on  the 
amount  so  received,  kept,  and  paid. 

"For  traveling  from  the  office  of  the  clerk,  where  he  is 
required  to  reside,  to  the  place  of  holding  any  court  required 
by  law  to  be  held,  five  cents  a  mile  for  going  and  five  cents 
for  returning,  and  five  dollars  a  day  for  his  attendance  on 
the  court  while  actually  in  session. 

"All  books  in  the  offices  of  the  clerks  of  the  circuit  and 
district  courts,  containing  the  docket  or  minute  of  the  judg- 
ments, or  decrees  thereof,  shall,  during  office  hours,  be  open 
to  the  inspection  of  any  person  to  examine  the  same  with- 
out any  fees  or  charge  therefor." 

§  543.  Marshals'  Fees. 

By  §  6,  Act  May  26,  1896,  ch.  252,  29  Stat.  at  L.  179, 
Comp.  Stat.  1901,  p.  611,  4  F.  8.  A.  133,  Rose's  Code,  §  745, 
all  fees  and  emoluments  authorized  by  law  to  be  paid  United 
States  marshals  shall  be  charged  as  heretofore,  and  shall  be 
collected  as  far  as  possible  and  paid  into  the  Treasury.  The 
official  himself,  however,  receives  a  salary  provided  in  §  9  of 
the  act,  Comp.  Stat.  p.  613,  4  F.  S.  A.  142,  Rose's  Code, 
§  634.  The  District  of  Columbia  does  not  seem  to  be  in- 
cluded. 

§  829,  R.  S.,  Comp.  Stat.  1901,  pp.  636-8,  4  F.  S.  A.  107- 
8-9,  Rose's  Code,  §  712.  "For  service  of  any  warrant, 


310         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  543 

attachment,  summons,  capias,  or  other  writ,  except  execu- 
tion, venire,  or  a  summons,  or  subpoma  for  a  witness,  two 
dollars  for  each  person  on  whom  service  is  made. 

"For  the  keeping  of  personal  property  attached  on  mesne 
process,  such  compensation  as  the  court,  on  petition  setting 
forth  the  facts  under  oath,  may  allow. 

"For  serving  venires  and  summoning  every  twelve  men  as 
grand  or  petit  jurors,  four  dollars,  or  thirty-three  and  one- 
third  cents  each.  In  states  where,  by  the  laws  thereof, 
jurors  are  drawn  by  lot,  by  constables,  or  other  offices  of 
corporate  places,  the  marshal  shall  receive,  for  each  jury, 
two  dollars  for  the  use  of  the  officers  employed  in  drawing 
and  summoning  the  jurors  and  returning  each  venire,  and 
two  dollars  for  his  own  services  in  distributing  the  venires. 
But  the  fees  for  distributing  and  serving  venires,  drawing 
and  summoning  jurors  by  tovnship  officers,  including  the 
mileage  chargeable  by  the  marshal  for  each  service,  shall  not 
at  any  court  exceed  fifty  dollars. 

"For  holding  a  court  of  inquiry  or  other  proceedings  be- 
fore a  jury,  including  the  summoning  of  a  witness,  fifty 
cents ;  and  no  further  compensation  shall  be  allowed  for  any 
copy,  summons,  or  notice  for  a  witness. 

"For  serving  a  writ  of  possession,  partition,  execution,  or 
any  final  process,  the  same  mileage  as  is  allowed  for  the  serv- 
ice of  any  other  writ,  and  for  making  the  service,  seizing  or 
levying  on  property,  advertising  and  disposing  of  the  same  by 
sale,  set  off,  or  otherwise  according  to  law  receiving  and  pay- 
ing over  the  money,  the  same  fees  and  poundage  as  are  or 
shall  be  allowed  for  similar  services  to  the  sheriffs  of  the 
states,  respectively,  in  which  the  service  is  rendered. 

"For  each  bail  bond,  fifty  cents. 

"For  summoning  appraisers,  fifty  cents  each. 

"For  executing  a  deed  prepared  by  a  party  or  his  attorney, 
one  dollar. 

"For  drawing  and  executing  a  deed,  five  dollars. 

"For  copies  of  writs  or  papers  furnished  at  the  request 
of  any  party,  ten  cents  a  folio. 

"For  every  proclamation  in  admiralty,  thirty  cents. 

"For  serving  an  attachment  in  rem  or  a  libel  in  admiralty, 
two  dollars. 

"For  the  necessary  expenses  of  keeping  boats,  vessels,  or 
other  property  attached  or  libeled  in  admiralty,  not  exceed- 
ing two  dollars  and  fifty  cents  a  day. 

"When  the  debt  or  claim  in  admiralty  is  settled  by  the 


543  COSTS  AND  FEES  311 

parties  without  a.  sale  of  the  property,  the  marshal  shall  be 
entitled  to  a  commission  of  one  per  centum  on  the  first  five 
hundred  dollars  of  the  claim  or  decree,  and  one-half  of  one 
per  centum  on  the  excess  of  any  sum  thereof  over  five  hun- 
dred dollars:  Provided,  That,  when  the  value  of  the  property 
is  less  than  the  claim,  such  commission  shall  be  allowed  only 
on  the  appraised  value  thereof. 

"For  sale  of  vessels  or  other  property  under  process  in 
admiralty,  or  under  the  order  of  a  court  of  admiralty,  and 
for  receiving  and  paying  over  the  money,  two  and  one-half 
per  centum  on  any  sum  under  five  hundred  dollars,  and  one 
and  one-quarter  per  centum  on  the  excess  of  any  sum  over 
five  hundred  dollars. 

"For  disbursing  money  to  jurors  and  witnesses,  and  for 
other  expenses,  two  per  centum. 

"For  expenses  while  employed  in  endeavoring  to  arrest, 
under  process,  any  person  charged  with  or  convicted  of  a 
crime,  the  sum  actually  expended,  not  to  exceed  two  dollars  a 
day,  in  addition  to  his  compensation  for  service  and  travel. 

"For  every  commitment  or  discharge  of  a  prisoner,  fifty 
cents. 

"For  transporting  criminals,  ten  cents  a  mile  for  himself 
and  for  each  prisoner  and  necessary  guard;  except  in  the 
case  provided  for  in  the  next  paragraph. 

"For  transporting  criminals  convicted  of  a  crime  in  any 
district  or  territory  where  there  is  no  penitentiary  available 
for  the  confinement  of  convicts  of  the  United  States,  to  a 
prison  in  another  district  or  territory  designated  by  the 
Attorney  General,  the  reasonable  actual  expense  of  trans- 
portation of  the  criminals,  the  marshal,  and  the  guards,  and 
the  necessary  subsistence  and  hire. 

"For  attending  the  circuit  and  district  courts,  when  both 
are  in  session,  or  either  of  them  when  only  one  is  in  session, 
and  for  bringing  in  and  committing  prisoners  and  witnesses 
during  the  term,  five  dollars  a  day. 

"For  attending  examinations  before  a  commissioner,  and 
bringing  in,  guarding,  and  returning  prisoners  charged  with 
crime,  and  witnesses,  two  dollars  a  day ;  and  for  each  deputy 
not  exceeding  two,  necessarily  attending,  two  dollars  a  day. 

"For  traveling  from  his  residence  to  the  place  of  holding 
court,  to  attend  a  term  thereof,  ten  cents  a  mile  for  going 
only. 

"For  travel,  in  going  only,  to  serve  any  process,  warrant, 
attachment,  or  other  writ,  including  writs  of  subpoena  in 


312         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  545 

civil  or  criminal  cases,  six  cents  a  mile,  to  be  computed  from 
the  place  where  the  process  is  returned  to  the  place  of  service, 
or,  when  more  than  one  person  is  served  therewith,  to  the 
place  of  service  which  is  most  remote,  adding  thereto  the 
extra  travel  which  is  necessary  to  serve  it  on  others.  But 
when  more  than  two  writs  of  any  kind  required  to  be  served 
in  behalf  of  the  same  party  on  the  same  person  might  be 
served  at  the  same  time,  the  marshal  shall  be  entitled  to  com- 
pensation for  travel  on  only  two  of  such  writs ;  and  to  save 
unnecessary  expense,  it  shall  be  the  duty  of  the  clerk  to  in- 
sert the  names  of  as  many  witnesses  in  a  cause  in  such  sub- 
poena as  convenience  in  serving  the  same  will  permit. 

"In  all  cases  where  mileage  is  allowed,  to  the  marshal  he 
may  elect  to  receive  the  same  or  his  actual  traveling  expenses, 
to  be  proved  on  his  oath,  to  the  satisfaction  of  the  court." 

§  544.  Attorneys,  Clerks,  and  Marshals'  Fees  under  Civil 
Rights  Laws. 

PL  §  1986,  R.  S.,  Comp.  Stat.  1901,  p.  1265,  1  F.  S.  A. 
799,  Rose's  Code,  §  722.  "The  district  attorneys,  marshals, 
and  their  deputies,  and  the  clerks  of  the  courts  of  the  United 
States  and  territorial  courts,  shall  be  paid  for  their  services, 
in  cases  under  the  foregoing  provisions,  the  same  fees  as 
are  allowed  to  them  in  like  cases,  and  when  the  proceedings 
are  before  a  commissioner  he  shall  be  entitled  to  a  fee  of 
ten  dollars  for  his  services  in  each  case,  inclusive  of  all 
services  incident  to  the  arrest  and  examination." 

§  545.  Fees  of  United  States  Commissioners. 

Pi.  §  21,  Act  May  28,  1896,  ch.  252,  29  Stat.  at  L.  184, 
Comp.  Stat.  1901,  pp.  652,  653,  4  F.  S.  A.  146-7,  Roses 
Code,  §  123.  "That  each  United  States  commissioner  shall 
be  entitled  to  the  following  named  fees,  and  none  other: 

"Drawing  a  complaint,  with  oath  and  jurat  to  same,  fifty 
cents. 

"Copy  of  complaint,  with  certificate  to  same,  thirty  cents. 

"Issuing  warrant  of  arrest,  seventy-five  cents. 

"Issuing  a  commitment  and  making  copy  of  same,  one 
dollar. 

"Entering  a  return,  fifteen  cents. 

"Issuing  subpoena  or  subpoenas  in  any  one  case,  with  five 
cents  for  each  necessary  witness  in  addition  to  the  first, 
twenty-five  cents. 


§    545  COSTS  AND  FEES  313 

"Drawing  a  bond  of  defendant  and  sureties,  taking  ac- 
knowledgment of  same  and  justification  of  sureties,  seventy- 
five  cents. 

"For  administering  an  oath  (except  to  witness  as  to  at- 
tendance and  travel),  ten  cents. 

"Recognizance  of  all  witnesses  in  a  case,  when  the  defend- 
ant or  defendants  are  held  for  court,  fifty  cents. 

"Transcripts  of  proceedings,  when  required  by  order  of 
court  and  transmission  of  original  papers  to  court,  sixty 
cents. 

"Copy  of  warrant  of  arrest,  with  certificate  to  same,  when 
defendant  is  held  for  court,  and  the  original  papers  are  not 
sent  to  court,  forty  cents. 

"Order  in  duplicate  to  pay  all  witnesses  in  a  case :  For 
first  witness,  thirty  cents,  and  for  each  additional  witness, 
five  cents,  and  for  oath  to  each  witness  as  to  attendance  and 
travel,  five  cents. 

"For  hearing  and  deciding  on  criminal  charges  and  re- 
ducing the  testimony  to  writing  when  required  by  law  or 
order  of  court,  five  dollars  a  day  for  the  time  necessarily 
employed. 

"Provided,  That  not  more  than  one  per  diem  shall  be  al- 
lowed in  a  case,  unless  the  account  shall  show  that  the  hear- 
ing could  not  be  completed  in  one  day,  when  one  additional 
per  diem  may  be  especially  approved  and  allowed  by  the 
court. 

"Provided,  further,  That  not  more  than  one  per  diem 
shall  be  allowed  for  any  one  day. 

"Provided,  further,  That  no  per  diem  shall  be  allowed  for 
taking  a  bond  or  recognizance  and  passing  on  the  sufficiency 
of  the  bond  or  recognizance  and  the  sureties  thereon  when 
the  bond  or  recognizance  was  taken  after  the  defendant  had 
been  committed  to  prison  upon  a  final  commitment,  or  has 
given  bond  or  been  recognized  for  his  appearance  at  court,  or 
when  the  defendant  has  been  arrested  on  a  capias  or  bench 
warrant,  or  was  in  custody  under  any  process  or  order  of  a 
court  of  record. 

"For  the  examination  and  certificate  in  cases  of  applica- 
tion for  discharge  of  poor  convicts  imprisoned  for  nonpay- 
ment of  fine  or  fine  and  costs,  and  all  services  connected 
therewith,  three  dollars. 

"For  attending  to  a  reference  in  a  litigated  matter,  in 
a  civil  cause  at  law,  in  equity,  or  in  admiralty,  in  pursuance 
of  an  order  of  the  court,  three  dollars  a  day. 


314         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  548 

"For  taking  and  certifying  depositions  to  file  in  civil 
cases,  ten  cents  for  each  folio. 

"For  each  copy  of  the  same  furnished  to  a  party  on  re- 
quest, ten  cents  for  each  folio. 

"For  issuing  any  warrant  under  the  tenth  article  of 
the  treaty  of  August  9,  1842,  between  the  United  States 
and  the  Queen  of  the  United  Kingdom  of  Great  Britain  and 
Ireland,  against  any  parties  charged  with  any  crime  or  of- 
fense set  forth  in  said  article,  two  dollars, 

"For  issuing  any  warrant  under  the  provision  of  the 
convention  for  the  surrender  of  criminals  between  the  United 
States  and  the  King  of  the  French,  concluded  at  Wash- 
ington, November  9,  1843,  two  dollars. 

"For  hearing  and  deciding  upon  the  case  of  any  person 
charged  with  any  crime  or  offense,  and  arrested  under  the 
provisions  of  said  treaty  or  of  said  convention,  five  dol- 
lars a  day  for  the  time  necessarily  employed  .  .  ." 

§  546.  Same — Under  Chinese  Exclusion  Laws. 

§2,  Act  March  8, 1901,  ch.  845,  31  Stat.  at  L.  1093,  Comp. 
Stat.  1901,  p.  1328,  1  F.  S.  A.  759,  Rose's  Code,  §  724.  "A 
United  States  Commissioner  shall  be  entitled  to  receive  a  fee 
of  five  dollars  for  hearing  and  deciding  a  case  arising  under 
the  Chinese  Exclusion  laws."  (31  Stat.  at  L.  1093.) 

§  547.  Costs  and  Witness  Fees  in  Extradition  Cases. 

§4,  Act  Aug.  3,  1882,  ch.  378,  Comp.  Stat.  1901,  p.  3595, 
8  F.  8.  A.  89,  Rose's  Code,  §  742.  "That  all  witness  fees 
and  costs  of  every  nature  in  cases  of  extradition,  including 
the  fees  of  the  commissioner,  shall  be  certified  by  the  judge 
or  commissioner  before  whom  the  hearing  shall  take  place 
to  the  Secretary  of  State  of  the  United  States,  who  is  hereby 
authorized  to  allow  the  payment  thereof  out  of  the  appropria- 
tion to  defray 'the  expenses  of  the  judiciary;  and  the  Secre- 
tary of  State  shall  cause  the  amount  of  said  fees  and  costs 
so  allowed  to  be  reimbursed  to  the  government  of  the  United 
States  by  the  foreign  government  by  whom  the  proceedings 
for  extradition  may  have  been  instituted."  (22  Stat.  at  L. 
216.) 

§  548.  Witnesses'  Fees. 

§  848,  R..S.,  Comp.  Stat.  1901,  p.  654,  7  F.  S.  A.  1124, 
Rose's  Code,  §  725.  "For  each  day's  attendance  in  court, 


§    550  COSTS  AND  FEES  315 

or  before  any  officer  pursuant  to  law,  one  dollar  and  fifty 
cents,  and  five  cents  a  mile  for  going  from  his  place  of  resi- 
dence to  the  place  of  trial  or  hearing,  and  five  cents  a  mile 
for  returning.  When  a  witness  is  subpoenaed  in  more  than 
one  cause  between  the  same  parties,  at  the  same  court,  only 
one  travel  fee  and  one  per  diem  compensation  shall  be  al- 
lowed for  attendance.  Both  shall  be  taxed  in  the  case  first 
disposed  of,  after  which  the  per  diem  attendance  fee  alone 
shall  be  taxed  in  the  other  cases  in  the  order  in  which  they 
are  disposed  of. 

"When  a  witness  is  detained  in  prison  for  want  of  security 
for  his  appearance,  he  shall  be  entitled,  in  addition  to.  his 
subsistence,  to  a  compensation  of  one  dollar  a  day." 

In  Wyoming,  Montana,  Washington,  Oregon,  California,  Ne- 
vada, Idaho,  Colorado,  New  Mexico,  Arizona,  and  Utah  the 
mileage  is  15  cents  over  stage,  5  cents  over  railroad.  (Act  Aug. 
3,  1892,  ch.  361,  27  Stat.  at  L.  347,  Comp.  Stat.  1901,  p.  655,  7 
F.  S.  A.  1127,  Hose's  Code,  §  734.) 

Witness  fees  in  extradition  cases  are  set  out,  §  547,  supra. 

Witnesses  before  the  Interstate  Commerce  Commission  are  en- 
titled to  the  same  fees  and  mileage  as  are  paid  to  witnesses  in 
the  Federal  courts.  (Pt.  §  18,  Act  Feb.  4,  1887,  ch.  104,  24 
Stat.  at  L.  386,  Comp.  Stat.  1901,  p.  3168,  3  F.  S.  A.  849,  Hose's 
Code,  §  726.) 

Other  matters  relating  to  witness  fees  are  in  the  following 
sections : 

§  549.  Court  Officer  Not  Entitled  to  Witness  Fees. 

§  849,  R.  8.,  Comp.  Stat.  1901,  p.  655,  7  F.  S..A.  1127, 
Rose's  Code,  §  729.  "No  officer  of  the  United  States  courts, 
in  any  state  or  territory,  or  in  the  District  of  Columbia,  shall 
be  entitled  to  witness  fees  for  attending  before  any  court  or 
commissioner  where  he  is  officiating." 

§  550.  Witness  Fees  Depositions  in  District  of  Columbia. 
§  874,  R.  S.,  Comp.  Stat.  1901,  p.  666,  S  F.  S.  A.  25, 
Rose's  Code,  §  727.    "Every  witness  appearing  and  testify- 
ing under  the  said  provisions  relating  to  the  District  of  Co- 
lumbia shall  be  entitled  to  receive  for  each  day's  attendance, 


316         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  553 

from  the  party  at  whose  instance  he  is  summoned,  the  fees 
now  provided  by  law  for  each  day  he  shall  give  attendance." 

§  551.  Same — Under  Letters  Rogatory  from  a   Foreign 
Country. 

§  4074,  R*  S.f  Comp.  Stat.  1901,  p.  2764,  3  F.  S.  A.  42, 
also  7  F.  S.  A.  1126,  Rose's  Code,  §  728.  "Every  witness 
who  shall  so  appear  and  testify  shall  be  allowed,  and  shall 
receive  from  the  party  at  whose  instance  he  shall  have  been 
summoned,  the  same  fees  and  mileage  as  are  allowed  to  wit- 
nesses in  suits  depending  in  the  district  courts  of  the  United 
States." 

§  552.  Witness  Fees  of  Seaman  Sent  Home  to  Give  Testi- 
mony in  Criminal  Cases. 

§  851,  R.  S.,  Comp.  Stat.  1901,  p.  655,  7  F.  S.  A.  1128, 
Rose's  Code,  §  781.  "There  shall  be  paid  to  each  seaman 
or  other  person  who  is  sent  to  the  United  States  from  any 
foreign  port,  station,  sea,  or  ocean,  by  any  United  States 
minister,  charge  d'affaires,  consul,  captain,  or  commander, 
to  give  testimony  in  any  criminal  case  depending  in  any 
court  of  the  United  States,  such  compensation,  exclusive  of 
subsistence  and  transportation,  as  such  court  may  adjudge  to 
be  proper,  not  exceeding  one  dollar  for  each  day  necessarily 
employed  in  such  voyage,  and  in  arriving  at  the  place  of 
examination  or  trial.  In  fixing  such  compensation,  the  court 
shall  take  into  consideration  the  condition  of  said  seaman  or 
witness,  and  whether  his  voyage  has  been  broken  up,  to  his 
injury,  by  his  being  sent  to  the  United  States.  When  such 
seaman  or  person  is  transported  in  an  armed  vessel  of  the 
United  States,  no  charge  for  subsistence  or  transportation 
shall  be  allowed.  When  he  is  transported  in  any  other  ves- 
sel, the  compensation  for  his  transportation  and  subsistence, 
not  exceeding  in  any  case  fifty  cents  a  day,  may  be  fixed 
by  the  court,  and  shall  be  paid  to  the  captain  of  said  vessel 
accordingly." 

§  553.  United  States  Liable  for  Only  Four  Witness  Fees 
on  Preliminary  Criminal  Examination. 

§  981,  R.  8.,  Comp.  Stat.  1901,  p.  705,  2  F.  S.  A.  291, 
Rose's  Code,  1837.  "In  no  case  shall  the  fees  of  more  than 
four  witnesses  be  taxed  against  the  United  States,  in  the 


§     556  COSTS  AND  FEES  317 

examination  of  any  criminal  case  before  a  commissioner  of 
a  circuit  court,  unless  their  materiality  and  importance  are 
first  approved  and  certified  to  by  the  district  attorney  for  the 
district  in  which  the  examination  is  had ;  and  such  taxation 
shall  be  subject  to  revision  as  in  other  cases." 

§  554.  Witness  Fees  in  Prize  Cases — How  Paid. 

§  4651,  R.  S.,  Comp.  Stat.  1901,  p.  3139,  6  F.  8.  A.  85, 
Rose's  Code,  §  743.  "Whenever  the  court  shall  allow  fees 
to  any  witness  in  a  prize  cause,  or  fees  for  taking  evidence 
out  of  the  district  in  which  the  court  sits,  and  there  is  no 
money  subject  to  its  order  in  the  cause,  the  same  shall  be 
paid  by  the  marshal,  and  shall  be  repaid  to  him  from  any 
money  deposited  to  the  order  of  the  court  in  the  cause;  and 
any  amount  not  so  repaid  the  marshal  shall  be  allowed  as 
witness  fees  paid  by  him  in  cases  in  which  the  United  States 
is  a  party." 

See  also  §  556,  infra,  as  to  mode  of  payment  of  witness  and 
juror  fees. 

§  555.  Juror  Fees— Grand  and  Petit. 

§  852,  R.  8.,-  Comp.  Stat.  1901,  p.  656,  4  F.  8.  A.  749, 
Rose's  Code,  §  732,  made  operative  by  Act  June  21,  1902, 
cli.  1138,  32  Stat.  at  L.  396,  Comp.  Stat.  1901,  p.  271,  4 
F.  8.  A.  751,  Rose's  Code,  §  733.  "For  actual  attendance  at 
any  court  or  courts,  and  for  the  time  necessarily  occupied  in 
going  to  and  returning  from  the  same,  three  dollars  a  day 
during  such  attendance.  For  the  distance  necessarily  traveled 
from  their  residence  in  going  to  and  returning  from  said 
court  by  the  shortest  practicable  route,  five  cents  a  mile." 

In  Wyoming,  Montana,  Washington,  Oregon,  California,  Ne- 
vada, Idaho,  Colorado,  New  Mexico,  Arizona,  and  Utah  the 
mileage  is  15  cents  over  stage,  5  cents  over  railroad,  but  no 
double  mileage  for  serving  both  as  a  witness  and  juror.  Act 
Aug.  3,  1892,  ch.  361,  27  Stat.  at  L.  347,  Comp.  Stat.  1901,  p. 
655,  7  F.  S.  A.  1127,  Rose's  Code,  §  734. 

§  556.  Mode  of  Payment  Juror  and  Witness  Fees. 

§  855,  R.  S.,  Comp.  Stat.  1901,  p.  657,  4  F.  8.  A.  127, 


318         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  560 

Roses-Code,  §  738.  "In  cases  where  the  United  States_arc 
parties,  the  marshal  shall,  on  the  order  of  the  court,  to  be 
entered  on  its  minutes,  pay  to  the  jurors  arid  witnesses  all 
fees  to  which  they  appear  by  such  order  to  be  entitled,  which 
sum  shall  be  allowed  him  at  the  Treasury  in  his  accounts." 

§  557.  Printer's  Fees. 

§  853,  R.  8.,  Comp.  8 tat.  1901,  p.  656,  2  F.  S.  A.  285, 
Rose's  Code,  §  735.  "For  publishing  any  notice  or  order 
required  by  law,  or  the  lawful  order  of  any  court,  depart- 
ment, bureau,  or  other  person,  in  any  newspaper,  except 
as  mentioned  in  sections  thirty-eight  hundred  and  twenty- 
five,  Title,  "Public  Printing,  Advertisements,  and  Public 
Documents,"  forty  cents  per  folio  for  the  first  insertion,  and 
twenty  cents  per  folio  for  each  subsequent  insertion.  The 
compensation  herein  provided  shall  include  the  furnishing 
of  lawful  evidence,  under  oath,  of  publication,  to  be  made 
and  furnished  by  the  printer  or  publisher  making  such  pub- 
lication." 

§  558.  Same— Folio  Defined. 

§  854,  R.  S.,  Comp.  8 tat.  1901,  p.  657,  2  F.  8.  A.  285, 
Rose's  Code,  §  736.  "The  term  'folio'  in  this  chapter  shall 
mean  one  hundred  words,  counting  each  figure  as  a  word. 
When  there  are  over  fifty  and  under  one  hundred  words,  they 
shall  be  counted  as  one  folio ;  but  a  less  number  than  fifty 
words  shall  not  be  counted,  except  when  the  whole  statute, 
notice,  or  order  contains  less  than  fifty  words." 

§  559.  Appraiser's  Fees  on  Execution  Sales. 

Last  PL  §  993,  R.  8.,  Comp.  Stat.  1901,  p.  710,  3  F.8.  A. 
52,  Rose's  Code,  §  737.  ".  .  .  When  such  appraisers 
attend  they  shall  be  entitled  to  the  like  fees  as  in  cases  of 
appraisement  under  the  laws  of  the  state." 

§  560.  No  Costs  against  United  States  in  Internal  Revenue 
Suits  upon  Information. 

§  969,  R.  8.,  Comp.  Stat.  1901,  p.  702,  2  F..8.  A  287, 
Rose's  Code,  §  1415.  "When  a  suit  for  the  recovery  of  any 
penalty  or  forfeiture  accruing  under  any  law  providing  in- 
ternal revenue  is  brought  upon  information  received  from 
any  person  other  than  a  collector,  deputy  collector,  or  in- 


§    564:  COSTS  AND  FEES  319 

spector  of  internal  revenue,  the  United  States  shall  not  be 
subject  to  any  costs  of  suit." 

§  561.  No    Costs   against   Prosecutor   nor   for    Claimant 
When  Reasonable  Cause  for  Seizure. 

§  970,  R.  S.,  Comp.  Stat.  1901,  p.  102,  2  F.  8.  A.  287, 
Rose's  Code,  §  1520.  "(Claimant  not  entitled  to  costs  when 
reasonable  cause  of  seizure.)  When,  in  any  prosecution 
commenced  on  account  of  the  seizure  of  any  vessel,  goods, 
wares,  or  merchandise,  made  by  any  collector  or  other  of- 
ficer, under  any  act  of  Congress  authorizing  such  seizure, 
judgment  is  rendered  for  the  claimant,  but  it  appears  to  the 
court  that  there  was  reasonable  cause  of  seizure,  the  court 
shall  cause  a  proper  certificate  thereof  to  be  entered,  and 
the  claimant  shall  not,  in  such  case,  be  entitled  to  costs,  nor 
shall  the  person  who  made  the  seizure,  nor  the  prosecutor, 
be  liable  to  suit  or  judgment  on  account  of  such  suit  or 
prosecution:  Provided,  That  the  vessel,  goods,  wares,  or  mer- 
chandise be,  after  judgment,  forthwith  returned  to  such 
claimant  or  his  agent." 

§  562.  Successful  Claimant  Entitled  to  Possession  When 
His  Own  Costs  Paid. 

§  979,  R.  S.,  Comp.  Stat.  1901,  p.  705,  2  F.  8.  A.  291, 
Rose's  Code,  §  1835.  "When  judgment  is  rendered  in  favor 
of  the  claimant  of  any  vessel  or  other  property  seized  on  be- 
half of  the  United  States,  and  libeled  or  informed  against 
as  forfeited  under  any  law  thereof,  he  shall  be  entitled  to 
possession  of  the  same  when  his  own  costs  are  paid." 

§  563.  Double  Costs  against  Nonsuited  Plaintiff  in  Action 
against  Revenue  Officer. 

§  971,  R.  8.,  Comp.  Stat.  1901,  p.  703,  2  F.  8.  A.  288, 
Rose's  Code,  §  1521.  "If,  in  any  suit  against  an  officer  or 
other  person  executing  or  aiding  or  assisting  in  the  seizure 
of  goods,  under  any  act  providing  for  or  regulating  the  col- 
lection of  duties  on  imports  or  tonnage,  the  plaintiff  is  non- 
suited, or  judgment  passed  against  him,  the  defendant  srn'll 
recover  double  costs." 

§  564.  Defendant  Subjected  to  Fine,  Forfeiture,  or  Con- 
viction shall  Pay  Costs  of  Prosecution. 

§  974,  R-  S.,  Comp.  Stat.  1901,  p.  703,  2.F.  S.  A.  289, 


320         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  567 

Rose's  Code,  §  1410.  "  (When  costs  of  prosecution  to  be 
paid  by  defendant.)  When  judgment  is  rendered  against 
the  defendant  in  a  prosecution  for  any  fine  or  forfeiture  in- 
curred under  a  statute  of  the  United  States,  he  shall  be  sub- 
ject to  the  payment  of  costs ;  and  on  every  conviction  for  any 
other  offense  not  capital,  the  court  may,  in  its  discretion, 
award  that  the  defendant  shall  pay  the  costs  of  the  prosecu- 
tion." 

§  565.  Defendant  to  be  Awarded  Costs  if  Informer  on  Pen- 
al Statute  Nonsuited  or  Discontinues. 

§  975,  R.  8.,  Comp.  Stat.  1901,  p.  103,  2  F.  8.  A.  289, 
Rose's  Code,  §  1830.  "If  any  informer  or  plaintiff  on  a 
penal  statute,  to  whom  the  penalty  or  any  part  thereof,  if  re- 
covered, is  directed  to  accrue,  discontinues  his  suit  or  prose- 
cution or  is  nonsuited  therein,  or  if,  upon  trial,  judgment 
is  rendered  in  favor  of  the  defendant,  the  court  shall  award 
the  defendant  his  costs,  unless  such  informer  or  plaintiff 
is  an  officer  of  the  United  States  specially  authorized  to  com- 
mence such  prosecution,  and  the  court,  at  the  trial  in  open 
court,  certifies  upon  the  record  that  there  was  a  reasonable 
cause  for  commencing  the  same ;  in  which  case  no  costs  shall 
be  adjudged  to  the  defendant." 

§  566.  Informer  on  Penal  Statute  to  Pay  Costs  if  Nonsuit 
or  Discontinuance. 

§  976,  R.  8.,  Comp.  Stat.  1901,  p.  704,  2  F.  8.  A.  290, 
Rose's  Code,  §  1831.  "If  any  informer  on  a  penal  statute, 
to  whom  the  penalty,  or  any  part  thereof,  if  recovered,  is 
directed  to  accrue,  discontinues  his  suit  or  prosecution,  or 
is  nonsuited  therein,  or  if  upon  trial  judgment  is  rendered 
in  favor  of  the  defendant,  such  informer  shall  be  alone  lia- 
ble to  the  clerk,  marshal,  and  attorney  for  the  fees  of  such 
prosecution,  unless  he  is  an  officer  of  the  United  States  whose 
duty  it  is  to  commence  such  prosecution,  and.  the  court 
certifies  that  there  was  reasonable  cause  for  commencing  the 
same;  in  which  case  the  United  States  shall  be  responsible 
for  such  fees." 

§  567.  Costs  in  Copyright  Suits. 

§  972,  R.  8.,  Comp.  Stat.  1901,  p.  703,  2  F.  8.  A.  288, 
Rose's  Code,  §  1S28.  "In  all  recoveries  under  the  copy- 
right laws,  either  for  damages,  forfeitures,  or  penalties,  full 
costs  shall  bo  allowed  therein." 


§    508  COSTS    AND    FEES  321 

§  40,  Act  Mcli.  4,  1^09,  ch.  320,  Comp.  St.  1911,  p. 
1484,  1909  Supp.  F.  S.  A.  91.  "That  in  all  actions,  suits, 
or  proceedings  under  this  act,  except  when  brought  bj  or 
against  the  United  States  or  any  officer  thereof,  full  costs 
shall  be  allowed,  and  the  court  may  award  the  prevailing 
party  a  reasonable  attorneys'  fee  as  part  of  the  costs."  (35 
Stat.  at  L.  1084.) 

§  568.  Costs  on  Infringement  of  Patent. 

§  973,  R.  S.,  Comp.  Stat.  1901,  p.  703,  2  F.  8.  A.  289, 
Rose's  Code,  §  1829.  "When  judgment  or  decree  is  ren- 
dered for  the  plaintiff  or  complainant,  in  any  suit  at  law 
or  in  equity,  for  the  infringement  of  a  part  of  a  patent,  in 
which  it  appears  that  the  patentee,  in  his  specification, 
claimed  to  be  the  original  and  first  inventor  or  discoverer  of 
any  material  part  of  the  thing  patented,  of  which  he  was  not 
the  original  and  first  inventor,  no  costs  shall  be  recovered, 
unless  the  proper  disclaimer,  as  provided  by  the  patent 
laws,  has  been  entered  at  the  Patent  Office  before  the  suit 
was  brought." 

§  4922,  R.  S.,  Comp.  Stat.  1901,  p.  8396,  5  F.  S.  A.  598, 
Rose's  Code,  §  1174-  "Whenever,  through  inadvertence, 
accident,  or  mistake,  and  without  any  wilful  default  or  in- 
tent to  defraud  or  mislead  the  public,  a  patentee  has,  in  his 
specification,  claimed  to  be  the  original  and  first  inventor 
or  discoverer  of  any  material  or  substantial  part  of  the  thing 
patented,  of  which  he  was  not  the  original  and  first  inventor 
or  discoverer,  every  such  patentee,  his  executors,  adminis- 
trators, and  assigns,  whether  of  the  whole  or  any  sectional 
interest  in  the  patent,  may  maintain  a  suit  at  law  or  in 
equity,  for  the  infringement  of  any  part  thereof,  which  was 
bona  fide  his  own,  if  it  is  a  material  and  substantial  part 
of  the  thing  patented,  and  definitely  distinguishable  from 
the  parts  claimed  without  right,  notwithstanding  the  specifi- 
cations may  embrace  more  than  that  of  which  the  patentee 
was  the  first  inventor  or  discoverer.  But  in  every  such  case 
in  which  a  judgment  or  decree  shall  be  rendered  for  the 
plaintiff  no  costs  shall  be  recovered  unless  the  proper  dis- 
claimer has  been  entered  at  the  Patent  Office  before  the 
commencement  of  the  suit.  But  no  patentee  shall  be  en- 
titled to  the  benefit*  of  this  section  if  he  has  unreasonably 
neglected  or  delayed  to  enter  a  disclaimer." 

Montg. — 21. 


CHAPTEK  18. 

AN  ACTION  AT  LAW— SUMMARY. 

Sec. 

580.  In  General. 

581.  Initial   Pleading. 

582.  Attachment  and  Garnishment. 

583.  Process. 

584.  Defensive   Pleading. 

585.  Amendment. 

586.  Continuances  and  Adjournments. 

587.  Consolidation. 

588.  Trial  by  Jury. 

589.  Trial  by  Judge. 

590.  Depositions,  Evidence,  Witnesses. 

591.  Charge  to  Jury  and  Verdict. 

592.  Judgment  and  New  Trial. 

593.  Execution. 

§  580.  In  General. 

§  914,  R-  S.,  Comp.  Stat.  1901,  p.  684,  4  F.  S.  A.  568, 
Roses  Code,  §  900.  "The  practice,  pleadings,  and  forms 
and  modes  of  proceeding  in  civil  causes,  other  than  equity 
and  admiralty  causes,  in  the  district  courts,  shall  conform, 
as  near  as  may  be,  to  the  practice,  pleadings,  and  forms  and 
modes  of  proceeding  existing  at  the  time  in  like  causes  in 
the  courts  of  record  of  the  state  within  which  such  .  . 
.  .  .  district  courts  are  held,  any  rule  of  court  to  the  con- 
trary notwithstanding." 

§  918,  R.  S.,  Comp.  Stat.  1901,  p.  685,  4  F.  S.  A.  585, 
Rose's  Code,  §  805.  "The  several  .  .  .  district  courts 
may,  from  time  to  time,  and  in  any  manner  not  inconsist- 
ent with  any  law  of  the  United  States,  or  with  any  rule 
prescribed  by  the  Supreme  Court  under  the  preceding  sec- 
tion, make  rules  and  orders  directing  the  returning  of  writs 
and  processes,  the  filing  of  pleadings,  the  taking  of  rules, 
the  entering  and  making  up  of  judgments  by  default,  and 

322 


§    582  AN    ACTION    AT    LAW SUJMMAKY  323 

other  matters  in  vacation,  and  otherwise  regulate  their  own 
practice  as  may  be  necessary  or  convenient  for  the  advance- 
ment of  justice  and  the  prevention  of  delays  in  proceedings." 

Under  the  foregoing  provisions,  an  action  at  law  conforms  in 
many  particulars  to  a  similar  action  in  the  state  courts  of  record 
of  the  state  wherein  the  Federal  district  is  located.  But  there  are 
a  number  of  Federal  statutes  that  exist  governing  matters  of  pro- 
cedure which  prevent  a  complete  uniformity  with  the  practice 
in  the  several  states.  There  are  other  matters  concerning  which 
the  Federal  judges,  in  the  exercise  of  their  discretion,  have  refused 
to  follow  the  state  rules  or  laws. 

The  object  of  this  chapter  is  to  summarize  the  conduct  of  an 
action  at  law  with  reference  to  conformity  with  state  laws. 

§  581.  Initial  Pleading.1  The  initial  pleading  conforms  as 
to  form  and  sufficiency  except  that  it  is  necessary  to  show  (1) 
ground  of  Federal  jurisdiction,  (2)  ground  of  legal  jurisdiction, 
that  the  causes  of  action  are  legal  as  distinguished  from  equitable, 
and  legal  and  equitable  causes  are  not  permitted  to  be  joined  in 
the  same  petition,  (3)  the  requisite  amount  in  controversy,  and 
(4)  that  venue  is  properly  laid.  (See  §§  600,  604,  infra.) 

As  to  parties  under  subdivision  first,  §  24,  Judicial  Code,  as- 
signees may  not  sue  except  when  the  assignor  or  assignors  could 
have  sued  in  the  Federal  court.  (See  §  195,  infra.) 

Joinder  of  parties  is  governed  by  §  50,  Judicial  Code.  Survival 
of  right  of  action  in  the  executor  or  administrator  is  governed  by 
§  55,  Judicial  Code.  In  other  respects  rules  of  state  courts  as  to 
parties  will  govern  as  in  case  of  suits  by  assignees,  assigning  causes 
of  action  for  torts,  executors  and  administrators,  misjoinder  of 
plaintiffs  or  defendants  and  right  of  action  for  death. 

§  582.  Attachment  and  Garnishment.2  The  remedies  of  at- 
tachment and  garnishment  are  given  in  conformity  to  state  laws 
under  §  915,  K.  S.,  except  as  against  national  banks  under  §  5242, 
R.  S.  (See  §  610,  infra.) 

iCh.  19,  post.  2Ch.  20,  post. 


324:         MONTGOMERY'S  MANUAL,  OF  FEDERAL  PBOCEDUKE     §  583 

It  is  presumed  that  the  Federal  courts  have  adopted  the  state 
laws  on  this  subject,  and  they  follow  the  state  courts'  construction 
of  state  attachment  statutes.  (See  §  612,  infra.) 

But  attachment  cannot  he  made  a  basis  of  jurisdiction  so  as  to 
authorize  service  by  publication.  The  Federal  courts  do  not  follow 
state  practice  in  jurisdictional  matters.  (See  §  613,  infra.) 

The  state  statutes  are  followed  as  to  causes  of  action  in  which 
attachments  will  issue,  the  property  subject  to  attachment,  the 
grounds  for  attachment  to  be  stated  in  the  affidavit,  the  bonds  given 
to  obtain  or  release,  the  form  of  writ,  the  effect  of  lien,  priorities, 
third-party  claims,  and  under  §  923,  R.  S.,  the  dissolution  of  the 
attachment.  (See  §  624,  infra.) 

But  state  laws  are  not  followed  as  to  amendments  of  the  affidavit 
or  the  writ,  amendments  being  governed  by  §  948,  R.  S.,  for  amend* 
ing  process.  (See  §  617,  infra.) 

In  like  manner,  state  laws  are  followed  in  garnishment  pro- 
ceedings under  §  915,  R.  S.,  relating  to  attachments  and  §  916, 
R.  S.,  relating  to  executions,  but  not  as  to  amendments  under  § 
948,  R.  S.,  relating  to  amendment  process  and  §  954,  R.  S.,  re- 
lating to  amendments  generally. 

There  are  special  provisions  as  to  attachments  in  postal  suits 
and  garnishments  in  suits  by  the  government  against  corporations. 

§  583.  Process.3  The  time  when  suit  begins  follows  state 
law;  so  also  the  state  statute  of  limitations.  (§  651,  infra.) 

The  form  and  body  of  process  follows  the  state  practice,  but 
the  signature,  seal  and  test  are  governed  by  §§  911,  912,  R.  S., 
and  amendment  of,  by  §§  948,  954,  R.  S.,  and  the  sufficiency  of 
process  and  service  are  governed  by  Federal  decisions.  (§§  652-3, 
infra.) 

The  marshal  or  his  deputy  serve  the  process  as  required  by  §§ 
787,  788,  R.  S.  But  the  method  of  personal  service  follows  state 
practice,  although  substituted  service  is  governed  by  §  57,  Judicial 
Code. 

The  Federal  decisions  govern  special  appearance.  (§§  654-5-6, 
infra.) 

3Ch.  21,  post. 


§    588  AN    ACTION    AT    LAW— SI."  M  MARY  325 

§  262,  Judicial  Code,  allows  other  writs  not  provided  by  statute. 

§  584.  Defensive  Pleading.4  The  time  and  order  of  pleading 
follow  state  practice.  Defaults  may  conform  to  state  law  under 
§  918,  R.  S.  (§  672,  infra.)  So  do  also  the  sufficiency  and  scope  of 
the  pleading.  Pleas  in  abatement,  demurrers,  answers,  set-offs,  or 
counterclaims  and  replications,  when  provided  by  state  practice, 
will  be  used  in  like  cases  in  the  Federal  courts.  State  rules  as  to 
verification  are  followed.  (§§  671,  3,  4,  infra.) 

But  equitable  defenses,  equitable  offsets  or  counterclaims,  the 
right  of  subrogation,  etc.,  are  not  allowed  in  law  actions  except 
equitable  estoppel.  (§  675,  infra.) 

§  585.  Amendment.  Amendment  of  pleading  is  covered  by 
§  954,  R.  S.  (§  676,  infra.) 

Amendment  of  process  by  the  same  section  and  also  §  948,  R.  S. 
(§  653,  infra.) 

§  586.  Continuances  and  Adjournments.5  Continuances  con- 
form to  state  practice  except  as  modified  by  §§  955  and  956,  R. 
S.,  on  the  death  of  a  party;  §  957,  R.  S.,  in  suits  against  a  delin- 
quent for  public  money;  §  958,  R.  S.,  in  postal  suits;  §  959,  R.  S., 
suits  on  debentures;  and  §  960,  R.  S.,  suits  under  tariff  laws. 
(§§  691-696,  infra.)  There  are  also  provisions  for  adjournments 
when  the  judge  is  unable  to  act,  §  12,  Judicial  Code,  or  his  office 
becomes  vacant,  under  §  22,  Judicial  Code,  and  for  concluding  in 
a  new  term  trials  already  commenced,  under  §  8,  Judicial  Code. 
(§§  63,  64,  65,  infra.) 

§  587.  Consolidation.  Consolidation  of  suits  under  §  921, 
R.  S.,  conforms  to  state  practice.  §  920,  R.  S.,  provides  for  con- 
solidation for  revenue  seizure  case.  (§  710,  infra.) 

§  588.  Trial  by  Jury.6  The  right  of  trial  by  jury  is  guaran- 
teed by  the  7th  Amendment  of  the  United  States  Constitution,  and 

4  Ch.  22,  post.  6  Ch.  23,  post.  «  Ch.  25,  post. 


326         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  5'.)0 

is  provided  for  by  §  566,  R.  S.  Ch.  12,  Judicial  Code,  as  to  juries, 
sets  out  the  provisions  governing  the  qualifications  and  exemptions 
of  jurors,  the  matters  of  impaneling,  venire,  talesmen,  special  jury, 
challenges,  etc.  The  conduct  of  a  jury  trial,  being  a  matter  of  per- 
sonal administration  of  the  judge,  does  not  conform  to  state  laws. 
Thus,  there  is  not  a  conformity  with  respect  to  the  scintilla  of  evi- 
dence rule,  nor  with  respect  to  withdrawing  case  from  the  jury  or 
permitting  the  jury  to  separate  or  submitting  special  issues  or 
waiving  jury. 

§  589.  Trial  by  Judge.7  By  §  291,  Judicial  Code,  the  powers 
and  duties  of  circuit  courts  are  imposed  upon  district  courts,  arid 
hence  under  §§  649  and  700,  R.  S.,  the  district  judge  would  have 
authority  to  try  questions  of  fact  on  waiver  of  jury.  The  admis- 
sion and  exclusion  of  evidence  can  only  be  considered  when  ex- 
cepted  to  at  the  time  and  duly  presented  by  bill  of  exceptions  under 
§  700,  R.  S.  The  findings  of  fact  by  the  judge  are  equivalent  to 
verdict  by  the  jury  under  §§  649,  700,  1011,  R.  S. 

§  590.  Depositions,  Evidence,  Witnesses.  The  causes  for 
taking  depositions  are  set  out  in  §§  863  and  866,  R.  S.,  and  the 
methods  of  taking  same  are  provided  for  in  §§  863  to  870,  R.  S., 
inclusive,  but  may  be  in  the  same  manner  though  not  for  the  same 
cause  as  provided  in  the  state  practice,  under  act  March  9,  1892, 
ch.  14.  The  subject  of  depositions  is  treated  in  chapter  16. 

There  are  many  statutory  provisions  relating  to  special  matters 
of  evidence,  permitting  copies  of  documents  of  departments,  the 
record  and  exemplification  of  books  kept  by  public  officers  of  a 
state  or  territory,  copies  of  foreign  records,  evidence  of  acts  of 
state  legislatures,  and  records  of  judicial  proceedings.  This  sub- 
ject is  treated  in  chapter  14. 

The  competence  of  witnesses  conforms  under  §  858,  R.  S.  State 
laws  are  followed  as  to  credibility.  The  examination  and  cross-ex- 
amination of  witnesses  conform  to  state  practice  under  §  861,  R.  S., 
but  not  as  to  the  examination  of  a  party  before  trial.  See  §  724, 
R.  S.,  our  §  711,  post 

7§  744.  infra. 


§    593  AN    ACTION    AT    LAW SUMMARY  327 

Subpoenas  for  witnesses  are,  under  §§  876  and  877,  R.  S.,  and 
in  contested  patent  cases  under  §  4906,  R.  S.,  and  their  attendance 
is  enforced  under  §  268,  Judicial  Code;  so,  also,  the  answers  of 
witnesses  may  be  enforced  under  §  268,  Judicial  Code,  and  in 
contested  patent  cases  under  §  4908,  R.  S.  The  production  of  books 
is  provided  for  in  §  724,  R.  S.,  and  subpoena  duces  tecum  under 
§§  724  and  869,  R.  S.  The  materiality  of  evidence  and  the  effect 
of  withdrawing  erroneously  admitted  evidence  are  governed  by 
Federal  decisions.  The  subject  of  witnesses  is  treated  in  detail, 
chapter  15,  above. 

§  591.  Charge  to  Jury  and  Verdict.  The  charge  to  the  jury 
is  also  a  matter  of  personal  administration  of  the  judge,  and  is 
governed  by  the  Federal  decisions.  Thus  state  laws  forbidding 
comments  on  evidence  are  not  followed.  §  918,  R.  S.,  governs 
the  giving  of  special  charges.  Exceptions  to  charges  are  governed 
by  circuit  courts  of  appeal  rules  10  and  supreme  court  rule  4. 
(§  766,  post.)  The  form  and  effect  of  a  verdict  and  a  judgment 
non  obstante  veredicto  conform  to  state  practice,  but  the  directing 
of  a  verdict  is  governed  by  the  Federal  decisions.  (§  763,  infra.) 

§  592.  Judgment  and  New  Trial.8  Judgments  in  law  actions 
may  conform  by  general  rule  to  state  laws  under  §  914,  R.  S., 
as  to  allowance  of  interest  by  §  966,  R.  S.,9  recording,  docketing, 
and  indexing  under  the  act  of  August  1,  1888,  chapter  729. 10  ;The 
manner,  effect,  and  extent  of  the  lien  or  judgments  conform  under 
the  last-mentioned  act,  and  when  they  cease  to  be  liens  under  § 
967,  R.  S.,11  and  the  lien  is  preserved  on  change  of  boundaries  by 
§  60,  Judicial  Code.12  Judgments  by  default  are  authorized  by 
§  918,  R.  S.13  Amendment  of  judgments  is  governed  by  §  954, 
R.  S.,14  and  vacation  of  judgments  is  governed  by  Federal  deci- 
sions.15 New  trials  are  governed  by  §  269,  Judicial  Code.16 

§  593.  Execution.17  Executions  on  judgments  in  law  actions 
may  conform  by  general  rule  to  state  statutes  under  §  916,  R.  S.,18 

8  Ch.  27,  post.  9  §  783,  post.  10  §§  735.  6,  7,  post.   "  §  787,  post. 

12  §  788,  post.  13  ^  (572.  post.  1*  S  789,  post.  15  §  790.  post. 

16  §  764,  post.  17  §  781,  post.  18  §  791,  post. 


328         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  593 

but  do  not  run  against  revenue  officers  for  moneys  paid  on  prob- 
able cause  into  the  Treasury,  under  §  989,  R.  S.19 

Stay  of  execution  pending  motion  for  new  trial  is  governed  by 
$  987,  R.  S.,20  and  there  is  partial  conformity  to  state  law  under 
§  988,  R.  S.,21  allowing  a  stay  for  one  term. 

Executions  run  to  any  part  of  the  state  under  §  985,  R.  S.,  and 
on  judgments  in  favor  of  the  United  States  to  any  part  <5f  the 
United  States,  under  §  986,  R.  S.22 

Place  of  sale  of  real  and  personal  property  is  governed  by  §§ 
1  and  2,  act  March  3,  1893,  chapter  22S.28 

Publication  of  notice  of  sale  of  real  estate  by  §  324  of  the  same 
act  and  proceedings  are  not  interrupted  by  vacancy  in  the  mar- 
shal's office,  under  §  994,  R.  S.25  The  government  may  be  a  pur- 
chaser in  its  own  suits  under  §  3470,  R.  S.26 

Appraisal  of  personal  property  sold  on  execution  may  conform 
to  state  laws  under  §  993,  R.  S.27 

State  laws  may  be  followed  regarding  abolishment  of  imprison- 
ment for  debt  under  §  990,  R.  S.,28  and  for  the  discharge  of  a 
person  from  arrest  or  imprisonment  in  civil  cases  under  §  991, 
R.  S.29  In  government  cases  a  poor  debtor  may  be  discharged 
from  imprisonment  by  the  Secretary  of  the  Treasury  under  § 
3471,  R.  S.,80  or  by  the  President  under  §  3472,  R.  S." 

19  §  792,  post.  20  §  793.  post.  21  §  794,  post.  22  §  795.  pO8t. 

23  §  800,  post.  24  §  801,  post.  25  §  802,  post.  26  §  803,  post. 

27  §  804.  post.  28  §  796,  post.  29  §  797,  post.  «0  §  798,  post. 
31  §  799,  post. 


CHAPTER    19. 

THE  INITIAL  PLEADING— LAW  ACTIONS. 

Sec. 

600.  Differences  between  Federal  and  State  Initial  Pleadings. 

601.  Effect  of  Failure  to  Show  Jurisdictional  Grounds. 
002.  Effect  of  Erroneously  Beginning  as  a  Suit  in  Equity. 

603.  Legal  and  Equitable  Causes  of  Action  May  Not  Be  Joined. 

604.  Form  of  Initial  Pleading. 

§  600.  Differences  between  Federal  and  State  Initial 
Pleadings.  Under  §  914,  R.  S.,  Comp.  St.  1901,  p.  684,  4  F. 
S.  A.  563,  the  initial  pleading  in  actions  at  law  as  distinguished 
from  suits  in  equity  conforms  "as  near  as  may  be"  to  the  pleadings 
and  forms  existing  at  the  time  in  like  causes  in  the  courts  of  rec- 
ord of  the  state  within  which  the  Federal  courts  are  held. 

Because,  however,  of  the  limited  jurisdiction  of  the  Federal 
courts  and  the  distinction  that  exists  in  such  courts  between  law 
and  equity  cases  in  respect  to  practice,  pleading,  forms  and  mode 
of  proceeding,  it  is  necessary  for  the  initial  pleading  in  an  action 
at  law  in  the  Federal  court  to  disclose,  in  addition  to  .those  matters 
required  to  make  a  good  pleading  in  the  state  court  of  record 
of  the  state  within  which  the  Federal  court  is  held:  (1)  Some 
ground  of  Federal  jurisdiction,  (2)  the  proper  amount  in  contro- 
versy (3)  facts  showing  that  the  cause  of  action  is  legal  in  its 
nature  as  distinguished  from  equitable,  (4)  proper  venue  under 
Federal  laws. 

In  other  respects  the  initial  pleading,  a  petition,  declaration, 
or  complaint,  in  an  action  at  law  in  the  Federal  court,  is  governed 
by  the  state  statutes  and  rules  in  like  causes  in  the  courts  of  record 
of  the  state  in  which  the  Federal  court  is  located.1  There  should 

1  Beers  v.  Haughton,  9  Pet.  359,  9  L.  ed.  155:  Ex  parte  Boyd,  105  U.  S. 
647,  26  L.  ed.  1200;  Indianapolis,  etc.,  R.  Co.  v.  Horst,  93  U.  S.  300.  23 
L.  ed.  901;  United  States  Bank  v.  Halstead,  10  Wheat.  51,  6  L.  ed.  264; 

329 


330         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  603 

also  be  consulted  the  Federal  district  court  rules  of  the  district 
in  which  the  action  is  brought  as  to  the  details  of  methods  of 
doing  business  of  these  courts  under  the  authority  of  §  918,  R.  S., 
U.  S.,  Comp.  St.  1901,  p.  685,  4  F.  S.  A.  585,  giving  power  to 
regulate  by  rules  their  own  practice.8 

§  601.  Effect  of  Failure  to  Show  Jurisdictional  Grounds. 

§  87,  Judicial  Code?  36  Stat.  at  L.  1098,  Comp.  St.  1911, 
p.  146,  1912  Supp.  F.  S.  A.  v.  1,  p.  158.  "If  in  any  suit 
commenced  in  a  district  court;  or  removed  from  a  state  court 
to  a  district  court  of  the  United  States,  it  shall  appear  to 
the  satisfaction  of  the  said  district  court,  at  any  time  after 
such  suit  has  been  brought  or  removed  thereto,  that  such  suit 
does  not  really  and  substantially  involve  a  dispute  or  con- 
troversy properly  within  the  jurisdiction  of  said  district 
court,  or  that  the  parties  to  said  suit  have  been  improperly 
or  collusively  made  or  joined,  either  as  plaintiffs  or  defend- 
ants, for  the  purpose  of  creating  a  case  cognizable  or  re- 
movable under  this  chapter,  the  said  district  court  shall 
proceed  no  further  therein,  but  shall  dismiss  the  suit  or  re- 
mand it  to  the  court  from  which  it  was  removed,  as  justice 
may  require  and  shall  make  such  order  as  to  costs  as  shall 
be  just." 

§  602.  Effect  of  Erroneously  Beginning  as  a  Suit  in 
Equity. 

Equity  Rule  22*  "If  at  any  time  it  appear  that  a  suit 
commenced  in  equity  should  have  been  brought  as  an  action 
on  the  law  side  of  the  court,  it  shall  be  forthwith  transferred 
to  the  law  side  and  be  there  proceeded  with,  with  only  such 
alteration  in  the  pleadings  as  shall  be  essential." 

§  603.  Legal  and  Equitable  Causes  of  Action  May  Not  Be 
Joined.  The  fact  that  a  state  statute  abolishes  the  forms  of 
action  has  no  effect  on  the  forms  of  pleading  in  equity  suits  in 
the  Federal  courts  in  that  state,  nor  does  such  statute  in  fact 
change  or  destroy  the  essential  distinctions  that  exist  between 

Parsons  v.  Bedford,  3  Pet.  448,  7  L.  ed.  737;  Matter  of  Freeman.  2  Curt.  491, 
Fed.  Gas.  No.  5,083;  United  States  v.  Knight,  3  Sumn.  30$),  Fed.  Cas.  No. 
15,533. 

2  Ewing  v.  Burnham,  74  Fed.  384;  Mutual  Bldg.  Fund,  etc..  Savings  Bank 
v.  Bossieux,  1  Hughes,  386,  Fed.  Cas.  No.  9,977. 

a  For  Annotation  6f  this  §  37,  Judicial  Code,  see  footnote  >*,  ante,  our  §  310. 

to  See  Equity  Rule  22,  with  Annotations,  in  Appendix,  post. 


§    604  THE    INITIAL    PLEADING LAW    ACTIONS  331 

law  and  equity  cases,  to  wit:  (1)  in  their  manner  of  trial,  at  law  by 
a  jury,  in  equity  by  the  judge;  (2)  in  the  nature  of  the  remedies 
granted,  in  law,  compensatory  or  possessory,  which  if  adequate  and 
complete  will  preclude  the  granting  of  equitable  remedies,  such  as 
injunction,  specific  performance,  and  the  like;  and,  (3)  in  the 
manner  of  enforcement  of  the  court's  orders,  in  all  cases  applicable 
by  the  writ  of  execution  and  such  other  process  as  the  state  statute 
may  give,  but  in  equity  under  Equity  Rule  8,  by  acting  in  personam 
by  means  of  contempt  proceedings  wherever  it  is  necessary  to  so 
enforce  the  orders  and  secure  the  relief  sought. 

The  Constitution  of  the  United  States  recognizes  these  two  forms 
of  actions,  and  they  cannot  be  changed  or  blended  in  the  Federal 
courts  by  any  provisions  of  the  Constitutions  or  statutes  of  the 
various  states.3 

§  604.  Form  of  Initial  Pleading.  The  following  is  given 
merely  by  way  of  suggestion  and  illustration,  and  will  vary  ac- 
cording to  the  state  practice  where  the  Federal  court  is  situated. 
There  should  be  the  usual  caption  followed  by  a  statement  of  the 
citizenship  and  residence  of  the  parties ;  the  ground  or  grounds 
of  Federal  jurisdiction,  amount  in  controversy,  and  a  statement  of 
a  cause  of  action,  legal  in  its  nature,  to  wit :  requiring  a  possessory 
or  compensatory  remedy  without  equitable  incidents.  The  prayer 
for  relief  should  be  signed  by  counsel  and  verified  as  required  by 
the  state  practice.  The  form  below  will  illustrate : 

IN   THE   DISTRICT   COURT   OF   THE   UNITED   STATES   WITHIN   AND 
FOR  THE  DISTRICT  OF DIVISION. 


John    Jones, 
Plaintiff, 


vs. 


Henry  Smith, 
Defendant. 


COMPLAINT  AT  LAW. 


John  Jones  for  his  cause  of  action,  alleges: — 

I. 

That  he  is  a  citizen  of  the  State  of    ,  residing  at 

in   said    State,   and   the   defendant   is  a   citizen  of  the   State  of 
residing  at   in  said  State. 

3  Simkins'  Fed.  Suit  at  Law,  page  12,  and  cases  cited. 


332         MONTGOMERY'S  MANUAL  OF  FEDERAL  PUO(  i:i»i  KI:     §  004: 

II. 

Here  set  out  the  amount  or  value  involved,  and,  if  the  jurisdiction  depends 
on  a  Federal  question,  direct  allegations  of  the  Federal  question.  In  other 
words,  the  grounds  of  Federal  jurisdiction. 

III. 

A  statement  of  facts  showing  that  the  claim  is  legal,  in  other  words,  a 
statement  of  a  cause  of  action  for  which  the  remedies  or  compensation  or 
possession  will  be  complete  and  adequate,  and  not  requiring  the  interposition 
of  equity. 

IV. 

The  prayer  for  relief. 

V. 

Signature  and  verification  as  prescribed  by  state  practice  of  the  state  where 
the  Federal  court  is  located. 

It  is  well  to  set  out  the  citizenship  and  residence  of  the  parties, 
whether  the  case  depends  on  diverse  citizenship  or  not,  as  that 
will  give  uniformity  of  pleading-  in  all  suite  and,  except  in  local 
actions,  will  also  show  whether  the  venue  has  been  properly  laid.* 

The  only  remedies  that  may  be  sought  in  a  Federal  suit  at 
law  are  possessory  or  compensatory,  and  the  initial  pleading  in 
a  suit  at  law  can  seek  these  remedies,  and  no  others. 

MVhithead  v.  Shattuck.  138  U.  S.  146,  34  L.  ed.  873,  11  Sup.  Ct.  Rep. 
276;  South  Penn.  Oil  Co.  v.  Miller,  175  Fed.  735,  99  C.  C.  A.  305.  See  also 
Beatty  v.  Wilson,  161  Fed.  453. 


CHAPTER    20. 

x 

ATTACHMENT  AND  GARNISHMENT  IN  LAW  CASES. 

Sec. 

610.  Attachment  and  Garnishment — Adoption   of  State  Laws  except  against 

National  Banks. 

611.  Rules  by  Federal  Courts  Adopting  State  Attachment  Remedies. 

612.  Construction  of  State  Attachment  Statutes  by  State  Courts  Followed  in 

Federal  Courts. 

613.  Attachment  Not  a  Basis  for  Substituted  Service,  but  Merely  a  Provision- 

al Re'medy. 

614.  Causes   of  Action  in   Which   Attachments   are  Authorized,   Governed  by 

State  Law. 

615.  Property  Subject  to  Attachment — State  Laws  Govern. 

616.  Affidavit  for  Attachment  should  Conform  to  State  Law. 

617.  Amendment  of  Affidavit  for  Attachment. 

618.  Bond  for  Attachment. 

619.  The  Writ  of  Attachment— Amendment,  §  948,  R.  S. 

620.  Lien  of  Attachment. 

621.  Priorities — Several  Attachments. 

622.  Delivery  Bond. 

623.  Third-Party   Claims    Follow   State   Laws. 

624.  Dissolution  of  Attachments  under  §  923,  R.  S. — Conforms  to  State  Laws. 

625.  Attachments  in  'Postal  Suits. 

626.  Same — Application  for  Warrant  under  §  925,  R.  S 

627.  Same — Issuing  Warrant — Duties  of  Clerk  and  Marshal  under  §  926,  R.  S. 

628.  Same — Ownership  of  Property — Trial  under  §  927,  R.  S. 

629.  Same — Proceeds  of  Sale — Investment  under  §  928,  R.  S. 
6.30.  Same— Publication  of  Warrant  under  §  929,  R.  S. 

631.  Same — Garnishees   of   Delinquents   in   Postal   Suits   under   §   930,   R.   S. 

632.  Same — Discharge  of  Warrant  on  Giving  Bond,  under  §  931,  R.  S. 

633.  Same — Adoption   of   State   Attachment  Laws   and   Former   Practice  Not 

Affected  by  Postal  Attachment  Laws. 

634.  Garnishment — General  Statement. 

635.  Effect  of  Garnishment. 

636.  Notice  of  Garnishment. 

637.  Persons  and  Property  Subject  to  Garnishment. 

638.  Issue  by  Garnishee. 

639.  Judgments  against  Garnishee. 

640.  Garnishees  in  Suits  by  the  Government  against  Corporations. 

641.  Same — Issue  Tendered  When  Garnishee  Denies   Indebtedness. 

642.  Same — Garnishee  in  Contempt  on  Failing  to  Appear. 

333 


334         MONTGOMERY'S  MANLTAL  OF  FEDERAL  PROCEDURE     §  611 

§  610.  Attachment  and  Garnishment — Adoption  of  State 
Laws  except  against  National  Banks. 

§  915,  R.  S.,  Comp.  Stat.  1901,  p.  684,  4  F.  S.  A.  577, 
Rose's  Code,  §  905.  "In  common-law  causes  in  the  circuit 
and  district  courts  the  plaintiff  shall  be  entitled  to  similar 
remedies,  by  attachment  or  other  process,  against  the  prop- 
erty of  the  defendant,  which  are  now  provided  by  the  laws 
of  the  state  in  which  such  court  is  held  for  the  courts  there- 
of ;  and  such  circuit  or  district  courts  may,  from  time  to  time, 
by  general  rules,  adopt  such  state  laws  as  may  be  in  force 
in  the  states  where  they  are  held  in  relation  to  attachments 
and  other  process:  Provided,  That  similar  preliminary  af- 
fidavits or  proofs,  and  similar  security,  as  required  by  such 
state  laws,  shall  be  first  furnished  by  the  party  seeking  such 
attachment  or  other  remedy." 

Not  against  national  banks. 

PL  §  5242,  R.  S.,  Comp.  Stat.  1901,  p.  3517,  5  F.  8.  A. 
188,  Rose's  Code,  §  907.  ".  .  .  no  attachment  ... 
shall  be  issued  against  such  association  or  its  property  be- 
fore final  judgment  in  any  suit,  action,  or  proceeding,  in 
any  state,  county,  or  municipal  court." 

Under  §  5242,  above  quoted,  the  power  to  issue  attachments 
against  national  banks  being  eliminated  from  state  statutes,  there 
would  be  no  right  to  same  in  the  Federal  courts  under  §  915, 
allowing  adoption  of  state  laws.1 

§  611.  Rules  by  Federal  Courts  Adopting  State  Attach- 
ment Remedies.  The  rules  adopting  state  laws  for  attachment 
proceedings  need  not  be  in  writing.2 

It  is  presumed  that  the  Federal  courts  have  adopted  the  state 
statutes.3 

The  Federal  courts  have  a  large  discretion  in  these  matters.4 

1  Pacific  National  Bank  v.  Mixter,  124  U.  -S.  721,  31  L.  ed.  570,  8  Sup. 

2  Citizens'   Bank   v.   Farwell,   56   Fed.  570.   6   C.   C.   A.  24,   12   U.   S.  App. 
409;    Logan   v.   Goodwin,    104    Fed.   490.   43   C.   C.   A.   658;    United   States   v. 
Stevenson,  1  Abb.  495,  Fed.  Cas.  No.  16.395. 

3  Lo«*an   v.  Goodwin,   104   Fed.  490,  43   C.   C.  A.  658 ;    Lowry  v.  Story,  31 
Fed    771;   Fullerton  v.  United  States  Bank,  1  Pet.  604,  7  L.  ed.  280. 

*Shi'pard  v.  Adams,  168  U.  S.  625.  42  L.  ed.  602.  18  Sup.  Ct.  Rep.  214. 


§     614          ATTACHMENT   AND  GARMSHMKXT    IX   LAW   CASES  335 

§  612.  Construction  of  State  Attachment  Statutes  by  State 
Courts  Followed  in  Federal  Courts.  The  scope,  meaning, 
and  application  of  the  state  attachment  law  and  practice  under 
it  as  construed  by  the  state  courts  will  be  followed  in  the  Federal 
courts.6 

§  613.  Attachment  Not  a  Basis  for  Substituted  Service, 
but  Merely  a  Provisional  Remedy.  Attachments  in  the  Fed- 
eral courts  cannot  be  made  the  basis  for  service  on  an  absent 
defendant  by  publication  because  of  the  requirements  of  §  51 
of  the  Judicial  Code  as  to  the  venue  of  actions  requiring  the 
suit  to  be  brought  in  the  district  of  a  defendant's  residence,  ex- 
cept as  in  the  succeeding  sections  provided,  §  57,  Judicial  Code, 
allowing  service  by  publication  on  absent  defendants  in  suits  to 
enforce  liens  or  remove  clouds  from  title. 

"The  attachment  proceeding,  therefore,  in  the  courts  of  the 
United  States,  has  altogether  a  different  character  from  that 
proceeding  in  rem  in  common  use  in  the  states,  the  object  of  which 
is  either  to  enforce  the  appearance  of  the  absent  defendant  or 
to  subject  his  property  to  the  payment  of  his  debts.  In  the  Fed- 
eral courts  there  must  be  jurisdiction  over  the  person  of  the 
defendant  and  of  a  subject-matter,  independent  of  the  proceed- 
ing in  attachment,  and  without  which  no  attachment  can  be 
effectual."  6 

"It  is  conceded  that  the  person  against  whom  this  suit  was 
brought  in  the  circuit  court  (of  the  United  States  for  the  dis- 
trict of  Iowa)  was  an  inhabitant  of  the  state  of  Massachusetts, 
and  was  not  found  in  or  served  with  process  in  Iowa.  Clearly, 
then,  he  was  not  suable  in  the  circuit  court  of  the  district  of  Iowa, 
and  unless  he  could  be  sued  no  attachment  could  issue  for  that 
court  against  his  property."  7 

§  614.  Causes  of  Action  in  Which  Attachments  Are  Au- 
thorized, Governed  by  State  Law.  There  are  some  variations 

,     6  Third   Nat.   Bank  of  Baltimore  v.  Teal,  5  Fed.  503;   Fleitas  v.  Cockrem, 
101  U.  S.  301,  25  L.  ed.  054. 

6  Erstein  v.  Rothschild,  22  Fed.  61.     See  also  Lovejoy  v.  Hartford  F.  Ins. 
Co.  11   Fcil.  (>3;   Lackett  v.  Rumhaugh,  45  Fed.  23,  29. 

7  Ex    parte   Ry.    Co.    103   U.   S.   794,   26   L.   ed.   461.     See   also   Toland   v. 
Sprague.  12  Pet.  300,  9  L.  ed.  1093. 


336          MONTGOMKKY'S  MAATAL  OF  FKHKR.U,  I-KOCHM  KK      >i    tilt 

in  the  several  states  as  to  the  kind  of  action  in  which  an  attach- 
ment will  be  permitted.  The  Federal  courts  follow  the  state  laws 
en  this  subject.8 

§  615.  Property  Subject  to  Attachment — State  Laws  Gov- 
ern. The  state  laws  govern  as  to  the  property  subject  to  attach- 
ment,9 but  in  the  Federal  courts  property  of  an  equitable  nature  10 
and  property  in  custodm  legis  cannot  be  attached,11  except  as  sev- 
eral levies  are  allowed  as  explained  in  §  586,  supra. 

§  616.  Affidavit  for  Attachment  should  Conform  to  State 
Law.  The  state  requirements  as  to  grounds  to  be  stated  in  the 
affidavit  for  attachment  by  whom  to  be  'made,  etc.,  govern  such 
affidavits  in  the  Federal  courts.12 

§  617.  Amendment  of  Affidavit  for  Attachment.  . 

§  948,  R.  8.,  Comp.  Stat.  1901,  p.  695,  4  F.  S  A.  593, 
Rose's  Code,  §  840.  "Any  circuit  or  district  court  may  at 
any  time,  in  its  discretion,  and  upon  such  terms  as  it  may 
deem  just,  allow  an  amendment  of  any  process  returnable 
to  or  before  it,  where  the  defect  has  not  prejudiced,  and  the 
amendment  will  not  injure,  the  party  against  whom  such 
process  issues." 

This  section  applies  to  a  defective  affidavit  for  attachment.18 
So,   also,  with   respect   to   defective   affidavit  for  garnishment 
though  amendment  not  allowed  by  state  law.14 

SSeeley  v.  Missouri,  K.  &  T.  R.  Co.  39  Fed.  253;  Rothschild  v.  Knight, 
184  U.  S.  334,  46  L.  ed.  573,  22  Sup.  Ct.  Rep.  391. 

» Thompson  v.  Baker,  141  U.  S.  648,  35  L.  ed.  889,  12  Sup.  Ct.  Rep.  89; 
Coulson  v.  Panhandle  Nat.  Bank,  54  Fed.  858.  4  C.  C.  A.  616,  13  U.  S.  App. 
30:  Bigelow  v.  Cliatterton,  51  Fed.  614.  2  C.  C.  A.  402,  10  U.  S.  App. 
267;  Richmond  v.  Brookings,  48  Fed.  241;  Montgomery  v.  McDermott,  103 
Fed.  801,  43  C.  C.  A.  348;  Simonds  v.  Pearce,  31  Fed.  137;  Hankinson  v. 
Page,  31  Fed.  185,  24  Blatchf.  422. 

10  Shiel  v.  Patrick,  59  Fed.  992,  8  C.  C.  A.  440,  20  U.  S.  App.  407. 

"Corbitt  v.  Farmers'  Bank,  114  Fed.  602:  Henry  v.  Gold  Park  Min.  Co. 
5  McCrary,  70,  15  Fed.  649;  Clarke  v.  Shaw,  28  Fed.  356. 

12  Johnson    v.    Johnson,    31    Fed.    700;    Societe    Fonciere    v.    Milliken,    135 
U.   S.   304,  34   L.   ed.   208,   10   Sup.   Ct.   Rep.   823;    Glidden   v.   Whittier,   46 
Fed.   437;    Bigelow   v.   Cliatterton,   51    Fed.   614,   2   C.   C.   A.   402,   10   U.   S. 
App.  267. 

13  Erstein  v.  Rothschild,  22  Fed.  61. 
"  Booth  v.  Denike,  65  Fed.  43. 


§    620        ATTACHMENT  AND  GARNISHMENT  IN  LAW   CASES  337 

Where  state  law  authorizes  amendment  under  certain  condi- 
tions, these  rights  will  be  given  in  Federal  courts.15 

§  618.  Bond  for  Attachment.  "The  plaintiff  seeking  an 
attachment  in  the  Federal  court  against  the  property  of  the  de- 
fendant is  required  to  furnish  security  in  the  same  manner  as  to 
amount  and  the  qualification  and  residence  of  the  sureties  that 
he  would  have  to  furnish  if  he  were  proceeding  in  the  state 
court."  16 

The  construction  of  the  bond  is  governed  by  state  laws.17 

Amendment  of  the  bond  is  allowed.18 

Action  on  bond  may  be  maintained  in  Federal  court.19 


§  619.  The  Writ  of  Attachment — Amendment,  §  948,  R.  S. 

The  form  and  issuance  of  the  writ  should  conform  to  state  prac- 
tice.20 

Increasing  amount  will  not  dissolve  attachment.21 

The  power  to  amend  in  attachment  suits  is  the  same  as  in  other 


The  court  seal  may  be  added  under  §  948,  R.  S.23 

§  620.  Lien  of  Attachment.     The  lien  created  by  the  levy 
is  governed  by  state  laws.24 

Personal  property  is  taken  into  the  custody  of  the  marshal.25 

15  Salmon  v.  Mills,  49  Fed.  333,  1  C.  C.  A.  278,  4  U.  S.  App.  101 ;  Fleischner 
v.   Pacific   Postal  Teleg.   Cable   Co.   55   Fed.   739;    Rothschild  v.   Knight,   184 
U.  S.  334,  46  L.  ed.  573,  22  Sup.  Ct.  Rep.   391;   Fitzpatrick  v.   Flannagan, 
106  U.  S.  648,  27  L.  ed.  211,  1  Sup.  Ct.  Rep.  369. 

16  Singer  Mfg.  Co.  v.  Mason,  5  Dill.  488,   Fed.  Cas.  No.  12,903.     See  also 
Fleitas  v.  Cockrem,  101  U.  S.  301,  25  L.  ed.  954;  Blue  Grass  Canning  Co.  v. 
Stewart,  175  Fed.  541,  99  C.  C.  A.  159. 

17  Fidelity  &  D.  Co.  v.  L.  Bucki  &  Son  Lumber  Co.  189  U.  S.  135,  47  L. 
ed.  744,  23  Sup.  Ct.  Rep.  582. 

18  Bumberger  v.  Gerson,  24  Fed.  257. 

19  Files  v.  Davis,  138  Fed.  465. 

20  Russia  Cement  Co.  v.  Le  Page  Co.  174  Mass.  349,  55  X.  E.  70. 

21  Cutler  v.  Lang,  30  Fed.  173. 

22  Tilton  v.  Cofield,  93  U.  S.  167,  23  L.  ed.  860. 

23  Wolf  v.  Cook,   40  Fed.  432. 

24Haukinson  v.  Page,  31  Fed.  184,  24  Blatchf.  422. 

25  Adler  v.  Roth,  5  Fed.  895,  2  McCrary.  445 ;   Coulson  v.  Panhandle  Nat. 

Bank,   54   Fed.   855-8,   4   C.   C.   A.   616,    ]3   U.   S.   App.   39.     See   Dudley   v. 

Lamoille  Co.  Nat.  Bank,  14  Fed.  217;   Richmond  v.   Brookings,  48  Fed.  241: 

People's  Sav.  Bank.  &  T.  Co.  v.  Batchelder- Egg  Case  Co.  51  Fed.  131-137,  2 

Montg.— 22. 


338         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  622 

By  §  60,  Judicial  Code,  quoted  §  170,  supra,  and  in  the  Appen- 
dix, post,  it  is  provided  that  the  lien  of  an  attachment  or  seizure, 
etc.,  shall  not  be  devested  by  a  change  of  boundaries,  but  a  certi- 
fied copy  filed  in  the  court  of  the  division  or  district  where  the, 
property  was  located  after  the  change  would  have  the  effect  of  an 
original. 

§  621.  Priorities — Several  Attachments.  The  Federal  and 
state  courts  are  of  co-ordinate  authority  in  administering  the  state 
attachment  laws.  The  court  under  whose  authority  the  first  levy 
is  made,  is  entitled  to  the  actual  custody  and  possession  of  the 
property.26  The  Federal'  courts  are  entitled,  however,  to  make 
a  constructive  levy  on  property  in  the  possession  of  a  state  officer 
when  the  state  law  authorizes  successive  levies  and  a  method  of 
settling  priorities.27 

Likewise  the  state  authorities  may  constructively  levy  on  prop- 
erty in  the  possession  of  the  marshal,  and  intervene  in  proceed- 
ings in  the  Federal  courts  in  the  same  district.28 

The  rights  of  other  creditors  will  be  preserved  in  the  Federal 
courts  even  if  their  claims  are  less  than  the  jurisdictional  amount 
required  to  sustain  a  suit,  in  such  courts,29  and  without  reference 
to  the  citizenship  of  the  parties.30 

On  removal  the  Federal  courts  will  distribute  the  fund  or  pro- 
ceeds of  attached  property  under  the  state  laws.81 

§  622.  Delivery  Bond.  The  provision  of  a  state  law,  or  the 
redelivery  of  attached  property  to  the  defendant  upon  his  furn- 
ishing a  delivery  bond,  is  recognized  and  followed  in  the  Federal 

C.  C.  A.  126,  4  U.  S.  App.  603;  Hankinson  v.  Page,  31  Fed.  184,  24  Blatchf. 
422. 

26  Adler  v.  Roth,  5  Fed.  895,  2  McCrary,  445 ;   Bates  v.  Days,  17  Fed.  167, 
5  McCrary,  342. 

27  Brooks  v.  Fry,  45  Fed.  776. 

MGumbel  v.  Pitkin,  124  U.  S.  131,  31  L.  ed.  374,  8  Sup.  Ct.  Rep.  379; 
Bates  v.  Days,  17  Fed.  167,  5  McCrary,  342. 

29  Krippendorf  v.  Hyde,  110  U.  S.  284,  28  L.  ed.  145.  4  Sup.  Ct.  Rep. 
27;  Rice  v.  Adler-Goldnian  Co.  71  Fed.  151.  18  C.  C.  A.  15. 

30Gumbel  v.  Pitkin,  124  U.  S.  132,  31.  L.  ed.  374,  8  Sup.  Ct.  Rep.  379; 
Fountain  v.  624  Pieces  of  Timber,  140  Fed.  381 ;  Hatcher  v.  Hendrie  &  B. 
Mfg.  &  Supply  Co.  133  Fed.  267,  68  C.  C.  A.  19;  Central  Trust  Co.  v. 
Worcester  Cycle  Mfg.  Co.  128  Fed.  483. 

31  Bankers'  &  M.  Tel.  Co.  v.  Chicago  Carpet  Co.  28  Fed.  398. 


§    625         ATTACHMENT  AND  GARNISHMENT   IN  LAW   CASES  339 

courts.32  Likewise  a  provision  of  state  law  not  permitting  a  de- 
livery bond  to  release  attached  money  will  be  recognized  in  the 
Federal  courts.33 

§  623.  Third-Party  Claims  Follow  State  Laws.  The  provi- 
sion of  a  state  law  permitting  a  third  party  to  claim  attached 
property  by  affidavit  of  ownership  and  furnishing  bond  will  be 
followed  in  the  Federal  courts.34  The  raising  of  the  issue  of 
ownership  has  also  been  permitted  by  motion  to  vacate  the  attach- 
ment.35 

§  624.  Dissolution  of  Attachments  under  §  923,  R.  S.— 
Conforms  to  State  Laws. 

§  923,  R.  8.,  Comp.  St.  1901,  p.  689,  1  F.  8.  A.  515. 
Rose's  Code,  §  906.  "( Attachments  dissolved  in  conformity 
with  state  laws.)  An  attachment  of  property,  upon  process 
instituted  in  any  court  of  the  United  States,  to  satisfy  such 
judgment  as  may  be  recovered  by  the  plaintiff  therein,  ex- 
cept in  the  cases  mentioned  in  the  preceding  nine  sections 
(in  postal  suits),  shall  be  dissolved  when  any  contingency 
occurs  by  which,  according  to  the  laws  of  the  state  where 
said  court  is  held,  such  attachment  would  be  dissolved  upon 
like  process  instituted  in  the  courts  of  said  state :  Provided, 
That  nothing  herein  contained  shall  interfere  with  any 
priority  of  the  United  States  in  the  payment  of  debts." 

§  625.  Attachments  in  Postal  Suits.  . 

§  924,  R-  8.,  Comp.  Stat.  1901,  p.  686,  1  F.  S.  A.  513, 
Rose's  Code,  §  1399.  "In  all  cases  where  debts  are  due  from 
defaulting  or  delinquent  postmasters,  contractors,  or  other 
officers,  agents,  or  employees  of  the  Postoffice  Department, 
a  warrant  of  attachment  may  issue  against  all  real  and  per- 
sonal property  and  legal  and  equitable  rights  belonging  to 
such  officer,  agent,  or  employee,  and  his  sureties,  or  either 
of  them,  in  the  following  cases: 

32  Ebner  v.  Held,  125  Fed.  680,  60  C.  C.  A.  370. 

33  United  States  v.  Xeely,  154  Fed.  496. 

34Marden  v.  Starr,  107  Fed.  199;  Batavia  v.  Wallace,  102  Fed.  240,  42 
C.  C.  A.  310;  Tennent-Stribling  Shoe  Co.  v.  Roper,  128  Fed.  40,  62  C.  C.  A. 
548. 

35  United  States  v.  Nealey,  146  Fed.  763. 


340         MONTGOMEKY'S  MANUAL  OF  FEDERAL  PIJOCEDUKK     §  627 

"First.  When  such  officer,  agent,  or  employee,  and  his 
sureties,  or  either  of  them,  is  a  nonresident  of  the  district 
where  such  officer,  agent,  or  employee  was  appointed,  or 
has  departed  from  such  district  for  the  purpose  of  perma- 
nently residing  out  of  the  same,  or  of  defrauding  the  United 
States,  or  of  avoiding  the  service  of  civil  process. 

"Second.  When  such  officer,  agent,  or  employee,  and  his 
sureties,  or  either  of  them,  has  conveyed  away,  or  is  about 
to  convey  away  his  property,  or  any  part  thereof,  or  has 
removed  or  is  about  to  remove  the  same  or  any  part  thereof 
from  the  district  wherein  it  is  situate,  with  intent  to  defraud 
the  United  States. 

"And  when  any  such  property  has  been  removed,  certified 
copies  of  the  warrant  may  be  sent  to  the  marshal  of  the  dis- 
trict into  which  the  same  has  been  removed,  under  which 
certified  copies  he  may  seize  said  property  and  convey  it 
to  some  convenient  point  within  the  jurisdiction  of  the  court 
from  which  the  Avarrant  originally  issued.  And  alias  war- 
rants may  be  issued  in  such  cases  upon  due  application,  and 
the  validity  of  the  warrant  first  issued  shall  continue  upon 
due  application,  and  the  validity  of  the  warrant  first  is- 
sued shall  continue  until  the  return  day  thereof." 

§  626.  Same — Application  for  Warrant  under  §  925,  R.  S. 

§  925,  R.  S.,  Comp.  Stat.  1901,  p.  687,  1  F.  S.  A.  515, 
Rose's  Code,  §  1400.  "Application  for  such  warrant  of  at- 
tachment may  be  made  by  any  district  or  assistant  district 
attorney,  or  any  other  person  authorized  by  the  Postmaster 
General,  before  the  judge,  or,  in  his  absence,  before  the 
clerk  of  any  court  of  the  United  States  having  original  ju- 
risdiction of  the  cause  of  action.  And  such  application  shall 
be  made  upon  an  affidavit  of  the  applicant,  or  of  some  other 
credible  person,  stating  the  existence  of  either  of  the  grounds 
of  attachment  enumerated  in  the  preceding  section,  and  upon 
production  of  legal  evidence  of  the  debt." 

§  627.  Same — Issuing  Warrant — Duties  of  Clerk  and  Mar- 
shal under  §  926,  R.  S. 

§  926,  R.  8.,  Comp.  Stat.  1901,  p.  687,  1  F.  S.  A.  513, 
Rose's  Code,  §  1401.  "Upon  any  such  application  and 
upon  due  order  of  any  judge  of  the  court,  or,  in  his  absence, 
without  such  order,  the  clerk  shall  issue  a  warrant  for  the 
attachment  of  all  the  property  of  any  kind  belonging  to  the 


§    680         ATTACHMENT  AND  GARNISHMENT  IN  LAW  CASES  341 

person  specified  in  the  affidavit,  which  warrant  shall  be  ex- 
ecuted with  all  possible  despatch  by  the  marshal,  who  shall 
take  the  property  attached,  if  personal,  into  his  custody, 
and  hold  the  same  subject  to  all  interlocutory  or  final  orders 
of  the  court." 

§  628.  Same — Ownership  of  Property — Trial  under  §  927, 
R.  S. 

§  927,  R.  S.,  Comp.  Stat.  1901,  p.  687,  1  F.  S.  A,  514, 
Pose's  Code,  §  1402.  "At  any  time  within  twenty  days  before 
the  return  day  of  such  warrant,  the  party  whose  property  is 
attached  may,  on  giving  notice  to  the  district  attorney  of 
his  intention,  file  a  plea  in  abatement,  traversing  the  allega- 
tions of  the  affidavit,  or  denying  the  ownership  of  the  prop- 
erty attached  to  be  in  the  defendants  or  either  of  them ; 
in  which  case  the  court  may,  upon  application  of  either  party, 
order  an  immediate  trial  by  jury  of  the  issues  raised  by  the 
affidavit  and  plea ;  but  the  parties  may,  by  consent,  waive 
a  trial  by  jury,  in  which  case  the  court  shall  decide  the  issues 
raised.  Arid  any  party  claiming  ownership  of  the  property 
attached  and  a  specific  return  thereof  shall  be  confined  to 
the  remedy  herein  afforded,  but  his  right  to  an  action  of 
trespass,  or  other  action  for  damages,  shall  not  be  impaired 
hereby." 

§  629.  Same — Proceeds  of  Sale — Investment  under  §  928, 
R.  S. 

§  928,  R.  8.,  Comp.  Stat.  1901,  p.  688,  1  F.  8.  A.  514, 
Rose's  Code,  §  1403.  "When  the  property  attached  is  sold 
on  any  interlocutory  order  of  the  court  or  is  producing  any 
revenue,  the  money  arising  from  such  sale  or  revenue  shall  bo 
invested  in  securities  of  the  United  States,  under  the  order 
of  the  court,  and  all  accretions  shall  be  held  subject  to  the 
orders  of  the  same." 

§  630.  Same — Publication  of  Warrant  under  §  929,  R.  S. 

§  929,  R.  S.,  Comp.  St.  1901,  p.  688,  1  F.  S.  A.  515, 
Rose's  Code,  §  1404-  "Immediately  upon  the  execution  of 
any  such  warrant  of  attachment,  the  marshal  shall  cans" 
due  publication  thereof  to  be  made,  in  the  case  of  abscond  ing 
debtors  for  two  months  and  of  nonresidents  for  four  months. 
The  publication  shall  be  made  in  some  newspaper  published 
in  the  district  where  the  property  is  situate,  and  the  details 


342         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  633 

thereof   shall  be   regulated  by  the  order  under  which   the 
warrant  is  issued." 

§  631.  Same — Garnishees  of  Delinquents  in  Postal  Suits 
under  §  930,  R.  S. 

§  930,  R.  S.,  Comp.  Stat.  1901,  p.  688,  1  F.  S.  A.  515, 
Rose's  Code,  §  1^5.  "After  the  first  publication  of  such 
notice  of  attachment  as  required  by  law,  every  person  in- 
debted to,  or  having1  possession  of  any  property  belonging 
to,  the  said  defendants,  or  either  of  them,  and  having  knowl- 
edge of  such  notice,  shall  account  and  answer  for  the  amount 
of  such  debt  and  the  value  of  such  property;  and  any  dis- 
posal or  attempt  to  dispose  of  any  such  property,  to  the  in- 
jury of  the  United  States,  shall  be  illegal  and  void.  And 
when  the  person  indebted  to,  or  having  possession  of  the 
property  of,  such  defendants,  or  either  of  them,  is  known 
to  the  district  attorney  or  marshal,  such  officer  shall  see 
that  personal  notice  of  the  attachment  is  served  upon  such 
person,  but  the  want  of  such  notice  shall  not  invalidate 
the  attachment." 

§  632.  Same — Discharge  of  Warrant  on  Giving  Bond  un- 
der §  931,  R.  S. 

§  931,  R.  S.,  Comp.  Stat.  1901,  p.  688,  1  F.  S.  A.  515, 
Rose's  Code,  §  1406.  "Upon  application  of  the  party 
whose  property  has  been  attached,  the  court,  or  any  judge 
thereof,  may  discharge  the  warrant  of  attachment  as  to  the 
property  of  the  applicant,  provided  such  applicant  shall 
execute  to  the  United  States  a  good  and  sufficient  penal 
bond,  in  double  the  value  of  the  property  attached,  to  be 
approved  by  a  judge  of  the  court,  and  with  condition  for 
the  return  of  said  property,  or  to  answer  any  judgment 
which  may  be  rendered  by  the  court  in  the  premises." 

§  633.  Same — Adoption  of  State  Attachment  Laws  and 

Former  Practice  Not  Affected  by  Postal  Attachment  Laws. 

§  932,  R.  S.,  Comp.  Stat.  1901,  p.  689,  1  F.  S.  A.  515, 

Rose's  Code,  §  1407.     "Nothing  contained  in  the  preceding 

eight  sections  shall  be  construed  to  limit  or  abridge,  in  any 

manner,  such  rights  of  the  United  States  as  have  accrued 

or  been  allowed  in  any  district  under  the  former  practice 

of,   or  the   adoption  of   state  laws   by,   the   United   States 

courts." 


§    638         ATTACHMENT  AND  GARNISHMENT  IN  LAW  CASES  343 

§  634.  Garnishment — General  Statement.    Under  §  915,  R. 

S.,  quoted  in  §  610  above,  garnishment  proceedings  and  the  rights 
and  liabilities  thereunder  as  prescribed  by  state  laws  may  be  adopt- 
ed by  the  Federal  courts.36 

Thus  the  effect  of  garnishment ;  87  a  notice  of  garnishment ;  88 
the  persons  and  property  subject  to  garnishment ; 89  the  raising 
of  the  issue  by  the  garnishee 40  and  the  judgment  against  the 
garnishee ;  41  all  conform  to  the  state  practice. 

§  635.  Effect  of  Garnishment.  A  garnishee  may  not  be 
placed  in  any  worse  condition  than  he  would  if  defendant  were 
prosecuting  the  claim  against  him,  but  otherwise  he  takes  the 
place  of  the  judgment  debtor  in  relation  to  the  attaching  creditor.*2 

§  636.  Notice  of  Garnishment.  The  state  law  governs  the 
sufficiency  of  the  notice  served  on  the  garnishee.43 

§  637.  Persons   and    Property    Subject   to    Garnishment. 

The  persons  who  may  be  garnished  and  the  kinds  of  property  for 
which  they  must  answer  are  governed  by  state'  laws.44 

A  debtor  under  a  judgment  in  a  Federal  court  cannot  be  sub- 
jected to  a  garnishment  in  the  state  court,  as  that  would  cause  a 
conflict  of  jurisdictions  greatly  inconvenient.45 

Debt  not  due  may  be  garnished.46 

§  638.  Issue  by  Garnishee.  The  practice  as  to  raising  is- 
sues by  a  garnishee  conforms  to  state  practice  except  as  to  appeal 
from  judgments  against  him.47 

36Eandolph  v.  Tandy,  98  Fed.  939,  39  C.  C.  A.  351;  Wile  v.  Cohn.  63 
Fed.  759. 

37  §  635,  post. 

38  §  636,  post. 

39  §  637,  post. 

40  §  638,  post. 

41  §  639.  post. 

«  Fidelity  Trust  Co.  v.  N.  Y.  Finance  Co.  125  Fed.  275,  60  C.  C.  A.  189; 
Allen  v.  JEtna  Life  Ins.  Co.  145  Fed.  881,  76  C.  C.  A.  265. 

43  Logan  v.  Goodwin,  104  Fed.  490,  43  C.  C.  A.  658;  Wile  v.  Cohn.  63  Fed. 
759. 

44  Moscow  Hardware  Co.  v.  Colson,  158  Fed.   199;   Johnson  v.  Union   Pac. 
R.  R.  145  Fed.  249. 

45  Henry  v.  Gold  Park  Min.  Co.  15  Fed.  649,  5  McCrary,  70. 

46  Smith   v.  Marker,   154   Fed.   838,   85   C.   C.  A.   372. 

47  Schuler  v.  Israel,  120  U.  S.  506,  30  L.  ed.  707,  7  Sup.  Ct.  Rep.  648. 


.">  H         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURK     §  641 

§  639.  Judgments  against  Garnishee.  The  entry  of  judg- 
ment against  the  garnishee  is  governed  by  state  laws,  and  on  ad- 
mission of  indebtedness  or  proof  that  he  is  not  indebted  the  state 
law  giving  reasonable  attorneys'  fees,48  and  also  costs,49  is  en- 
forced. Where  the  state  law  authorizes  the  garnishee  to  deliver 
up  property  to  the  officer,  and  be  relieved  without  judgment,  the 
law  will  be  followed.50  Also,  where  the  state  law  requires  a  suit, 
instead  of  a  garnishment  process,  against  the  attached  debtor, 
that  law  will  be  followed.61 

§  640.  Garnishees  in  Suits  by  the  Government  against 
Corporations. 

§  935,  R.  8.,  Comp.  St.  1901,  p.  689,  3  F.  8.  A.  154, 
Roses  Code,  §  1412.  "In  any  suit  by  the  United  States 
against  a  corporation  for  the  recovery  of  money  upon  a  bill, 
note,  or  other  security,  the  debtors  of  the  corporation  may 
be  summoned  as  garnishees;  and  it  shall  be  the  duty  of 
any  person  so  summoned  to  appear  in  open  court  and  to 
depose,  in  writing  to  the  amount  which  he  was  indebted  to 
the  said  corporation  at  the  time  of  the  service  of  the  summons 
and  at  the  time  of  making  such  deposition;  and  judgment 
may  be  entered  in  favor  of  the  United  States  for  the  sum 
admitted  by  such  garnishee  to  be  due  to  the  said  corporation, 
in  the  same  manner  as  if  it  had  been  due  to  the  United 
States:  Provided,  That  no  judgment  shall  be  entered  against 
any  garnishee  until  after  judgment  has  been  rendered  against 
the  corporation  defendant  to  the  said  action,  nor  until  the 
sum  in  which  the  garnishee  stands  indebted  is  actually  due." 

§  641.  Same — Issue  Tendered  When  Garnishee  Denies 
Indebtedness. 

§  936,  R.  S.,  Comp.  Stat.  1901,  p.  690,  3  F.  S.  A.  154, 
Rose's  Code,  §  1413.  "When  any  person  summoned  as  gar- 
nishee deposes  in  open  court  that  he  is  not,  and  was  not  at 
the  time  of  the  service  of  the  summons,  indebted  to  such  cor- 
poration, an  issue  may  be  tendered  by  the  United  States  upon 

«Xew   York   Finance   Co.   v.   Potter,   126   Fed.   432. 

WRome  R.  Co.  v.  Richmond,  etc.,  Co.  60  Fed.  43. 

60  Allen-West  Commission  Co",  v.  Grumbles,  129  Fed.  288,  63  C.  C.  A. 
401;  Hatcher  v.  Hendrie  Swiss  etc.  Co.  133  Fed.  267.  68  C.  C.  A.  19. 

51  Brandenstein  v.  Halvetia  Swiss  Fire  Ins.  Co.  159  Fed.  589,  also  Helvetia 
Swiss  Fire  Ins.  Co.  v.  Brandenstein,  168  Fed.  1020,  92  C.  C.  A.  614. 


§    642         ATTACHMENT  AND  GARNISHMENT  IN  LAW  CASES  345 

such  demand,  and  if,  upon  the  trial  of  that  issue,  a  verdict 
is  rendered  against  the  garnishee,  judgment  shall  be  entered 
in  favor  of  the  United  States,  pursuant  to  such  verdict,  with 
costs  of  suit." 

§  642.  Same — Garnishee  in  Contempt  on  Failing  to  Ap- 
pear. 

§  937,  R.  8.,  Comp.  Stat.  W'Ol,  p.  690,  3  F.  8.  A.  154, 
Rose's  Code,  §  14-14-  "If  any  person  summoned  as  garnishee, 
as  aforesaid,  fails  to  appear  at  the  term  of  the  court  to  which 
he  is  summoned,  he  shall  be  subject  to  attachment  for  con- 
tempt of  the  court." 


CHAPTER  21. 

PROCESS  LAW  ACTIONS. 
Sec. 

650.  In  General. 

651.  When  Suit  is  Begun. 

<i.V2.  The  Forms  of  Process  for  the  Commencement  of  Suits,  except  as  to  Sig- 
nature, Teste,  and  Sealing,  Conform  to  State  Practice. 
(?'>:?.  Amendment   of   Process. 
654.  By  Whom  Process  is  Served. 
t/55.  Method  of  Service  of  Process. 

656.  Service  by  Publication  under  §  57,  Judicial  Code. 

657.  Special  Appearance. 

658.  Suit  in  Forma  Pauperis. 

§  650.  In  General.       Under  §  721,  R.  S.,  the  Federal  courts, 

in  following  the  laws  of  the  several  states,  adopt  the  state  statutes 
of  limitations  except  where  otherwise  prescribed  by  Federal  stat- 
utes, and  in  like  manner  follow  the  state  law  as  to  what  is  the 
beginning  of  a  suit.1 

The  form  and  body  of  process  follow  the  state  practice  under 
the  conformity  act  §  914,  R.  S.,  but  the  signatures,  seal,  and  teste 
are  covered  by  §§  911,  912,  R.  S.,2  and  amendment  of  process 
by  §§  948,  954,  R.  S.3  The  sufficiency  of  process,  because  re- 
lating to  jurisdiction,  does  not  conform  to  state  law,  but  is  gov- 
erned by  Federal  decisions,4  so  also  with  respect  to  special  ap- 
pearances.5 By  whom  process  is  served  is  provided  in  §§  787, 
788,  R.  S.6  The  method  of  service,  except  substituted  service 
which  is  governed  by  §  57,  Judicial  Code,  follows  the  state 
practice.7  A  suit  in  forma  pauperis  is  authorized  under  act 
July  20,  1892,  chapter  209.8 

§  651.  When  Suit  is  Begun.  Under  §  721,  R.  S.,  re- 
lating to  the  adoption  of  state  rules  of  decision,  the  Federal  courts 

1§  651.  infra.  2§  052,  infra.  3§  653,  infra.  *  §  655,  infra.  5§  657,  infra. 
G  .<  (54,  infra.  7  §  655,  infra.  8  §658,  infra. 

346 


§  652  PEOCESS  LAW  ACTIONS  347 

follow  the  state  laws  of  limitation.9  So,  also,  a  state  ruling  that 
the  filing  of  a  petition  in  a  court  of  the  proper  jurisdiction  is 
the  begining  of  the  suit  has  been  followed  by  the  Federal  court.10 
There  should  be,  however,  the  issuance  of  process  and  a  bona  fide 
effort  to  serve  same.11 

§  652.  The  Forms  of  Process  for  the  Commencement  of 
Suits,  except  as  to  Signature,  Teste,  and  Sealing,  Conform 
to  State  Practice.12  Indorsements  upon  the  copy  of  summons 
in  actions  for  penalties  brought  by  the  United  States  thus  con- 
form.18 If  the  Federal  courts  have  adopted  by  rule  of  court  a 
form  of  process  conforming  to  the  state  law,  a  subsequent  change 
of  the  state  law  would  have  to  be  adopted  to  render  improper  a 
writ  under  the  old  form.14 

§  911,  R.  8.,  Comp.  Stat.  1901,  p.  683,  4  F.  8.  A.  560, 
Rose's  Code,  §  836.  "All  writs  and  processes  issuing  from 
the  courts  of  the  United  States  shall  be  under  the  seal  of  the 
court  from  which  they  issue,  and  shall  be  signed  by  the  clerk 
thereof.  Those  issuing  from  the  Supreme  Court  or  a  cir- 
cuit court  shall  bear  teste  of  the  Chief  Justice  of  the  United 
States,  or,  when  that  office  is  vacant,  of  the  associate  justice 
next  in  precedence,  and  those  issuing  from  a  district  court 
shall  bear  teste  of  the  judge,  or,  when  that  office  is  vacant, 
of  the  clerk  thereof.  The  seals  of  said  courts  shall  be  pro- 
vided at  the  expense  of  the  United  States." 

§  01.2,  R.  8.,  Comp.  Stat.  1901,  p.  683,  4  F.  S.  A.  560, 
Rose's  Code,  §  837.  "All  process  issued  from  the  courts  of 
the  United  States  shall  bear  teste  from  the  day  of  such 
issue." 

9  Chapter  13,  Statutes  of  Limitations. 

10  International  Bank  &  Trust  Company  v.  Scott,  159  Fed.  60,  86  C.  C.  A. 
248;  Goldcnberg  v.  Murphy.  108  U.  S.  162,  27  L.  ed.  686.  2  Sup.  Ct.  Rep.  388; 
Re  Connaway.   178   U.   8.  430,   44  L.   ed.   1137,  20   Sup.   Ct.   Rep.   951:   Deep 
Water  R.  Co.  v.  Western  Pocahontas  Coal  &  Lumber  Co.  152  Fed.  824. 

11  United  States  v.  American  Lumber  Co.  80  Fed.  315 ;  Michigan  Ins.  Bank 
v.  Eldn-d,  130  U.  S.  697.  32  L.  ed.  1082,  9  Sup.  Ct.  Rep.  690. 

12  <;  ilium   v.   Stewart,    112   Fed.   32:    Middleton   Paper   Co.   v.   Rock   River 
Paper  Co.  19  Fed.  252;   Brown  v.  Pond.  5  Fed.  31;»Peaslee  v.  Haberstro,  15 
Blatchf.  472.  Fed.  Caa.  No.  10.884. 

13  I'nited  States  v.  Rose,  14  Fed.  681:   Miller  v.  Gages.  4  McLean,  436,  Fed. 
Cas.  Xo.  9,571. 

"Shepard  v.  Adams.  168  U.  S.  624,  42  L.  ed.  604.  18  Sup.  Ct.  Rep.  214; 
Elson  v.  Waterford,  135  Fed.  247. 


348         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     ^  053 

A  garnishment  notice  does  not  come  under  the  requirements  of 
§§  911  and  912,  R.  S.,  but  is  governed  by  §  915,  R.  S.,  and  if  it 
conforms  under  the  later  section  to  the  state  court  procedure  it 
will  be  held  valid.16 

§  653.  Amendment  of  Process. 

§  948,  R.  S.,  Pomp.  Slat.  1901,  p.  695,  .}  F.  X.  A.  593, 
Rose's  Code,  §  840.  "Any  circuit  or  district '*ourt  may  at 
any  time,  in  its  discretion,  and  upon  such  terms  as  it  may 
deem  just,  allow  an  amendment  of  any  process  returnable  to 
or  before  it,  where  the  defect  has  not  prejudiced,  and  the 
amendment  will  not  injure,  the  party  against  whom  such 
process  issues." 

§  954,  R-  S.,  Comp.  Slat.  1901,  p.  696,  4  F.  8.  A.  596, 
Rose's  Code,  §  813.  "Xo  summons,  writ,  declaration,  re- 
turn, process,  judgment,  or  other  proceedings  in  civil  causes, 
in  any  court  of  the  United  States,  shall  be  abated,  arrested, 
quashed,  or  reversed  for  any  defect  or  want  of  form ;  but 
such  court  shall  proceed  and  give  judgment  according  as 
the  right  of  the  cause  and  matter  in  law  shall  appear  to  it, 
without  regarding  any  such  defect,  or  want  of  form,  except 
those  which,  in  cases  of  demurrer,  the  party  demurring 
specially  sets  down,  together  with  his  demurrer,  as  the  cause 
thereof;  and  such  court  shall  amend  every  such  defect  and 
want  of  form,  other  than  those  wThich  the  party  demurring 
so  expresses;  and  may  at  any  time  permit  either  of  the 
parties  to  amend  any  defect  in  the  process  or  pleadings, 
upon  such  conditions  as  it  shall,  in  its  discretion  and  by  its 
rules,  prescribe." 

Illustrations  of  amendments  under  the  foregoing  statutes  are 

as  follows :  a  district  court  summons  bearing  teste  of  Chief  Jus- 

.  tice ;  16  striking  out  of  a  summons  and  declaration  "administrator, 

etc.,  and  inserting  executor,  etc. ;"  l7  altering  date  of  writs  made 

returnable  on  Sunday  on  another  wrong  day ;  18  changing  date 

15  Wile  v.  Cohn,  63  Fed.   759;   Middleton  Paper  Co.  v.  Rock  River  Paper 
Co.  19  Fed.  252. 

16  United  States  v.  Turner,  50  Fed.  734. 
"Randolph  v.  Barrett,  16  Pet.  138,  10  L.  ed.  914. 

18  Norton  v.  Dover,  14  Fed.  106;   Hampton  v.  Rouse,  15  Wall.  684,  21  L. 
ed.  250;  Semmes  v.  United  States,  91  U.  S.  21,  23  L.  ed.  193. 


§    654  PROCESS    LAW    ACTIONS  349 

of  summons ; 19  changing  name  of  plaintiff  in  summons  to  conform 
to  complaint.20 

Not  every  defect,  however,  will  be  allowed  to  be  amended.  A 
summons  not  signed  nor  under  seal  of  court  is  not  amendable,21 
.nor  a  defective  indorsement  of  substantive  matter.22 

The  power  of  amendment  conferred  by  these  statutes  cannot  be 
diminished,  but  may  be  enlarged  by  state  practice  if  the  Federal 
courts  adopt  the  state  rule.28 

§  654.  By  Whom  Process  Is  Served. 

§  757,  R.  S.f  Comp.-Stat.  1901,  p.  608,  4  F.  8.  A.  159, 
Rose's  Code,  §  644-  "It  shall  be  the  duty  of  the  marshal 
of  each  district  to  attend  the  district  and  circuit  courts 
when  sitting  therein,  and  to  execute,  throughout  the  district, 
all  lawful  precepts  directed  to  him,  and  issued  under  the 
authority  of  the  United  States;  and  he  shall  have  power  to 
command  all  necessary  assistance  in  the  execution  of  his 
duty." 

§  788,  R.  8.,  Comp.  Stat.  1901,  p.  608,  4  F.  8.  A.  161, 
Rose's  Code,  §  660.  "The  marshals  and  their  deputies  shall 
have,  in  each  state,  the  same  powers,  in  executing  the  laws  of 
the  United  States,  as  the  sheriffs  and  their  deputies  in  such 
state  may  have,  by  law,  in  executing  the  laws  thereof." 

The  marshal  is  the  executive  officer  of  the  court,  and  no  other 
person  is  authorized  to  serve  process  directed  to  him  except  him- 
self or  his  deputy.24  Where  a  state  law  permits  original  process 
to  be  served  by  a  private  person,  that  law  cannot  be  followed  in 
the  Federal  court,  but  it  must  be  served  by  the  marshal  or  his 
deputy.26  Independently  of  state  laws,  the  marshals  of  the  United 
States  have  power  to  deputize  persons  for  the  service  of  writs.28 

19  Gilbert  v.  S.  Carolina,  etc.,  Exp.  Co.  113  Fed.  523. 

20  Gulf,  etc.,  C.  Co.  v.  James,  48  Fed.  148,  1  C.  C.  A.  53. 

21  Dvvight  v.  Merritt,  4  Fed.  614,  18  Blatchf.  305. 

22  Brown  v.  Pond,  5  Fed.  31. 

23  Norton  v.  Dover,  14  Fed.  106. 

24  Schwabacker  v.  Reilly,  2  Dill.  127,  21  Fed.  Cas.  No.  12,501. 

25  ibid.,  and  see  Shepard  v.  Adams,  168  U.  S.  624.  42  L.  ed.  604,  18  Sup. 
Ct.  Rep.  214. 

26  The  Tug.  E.  W.  Gorgas.  10  Ben.  460,  8  Fed.  Cas.  No.  4,585. 


350         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  650 

§  655.  Method  of  Service  of  Process.  The  Federal  stat- 
utes do  not  designate  how  service  shall  be  made  in  suits  at  law, 
and  accordingly  the  method  of  service  conforms  to  state  practice 
under  §  914,  R.  S.,27  except  substituted  service  under  §  57,  Judicial 
Code. 

"The  laws  of  the  state  providing  for  the  service  of  process  of 
state  courts  in  actions  at  law  furnish  the  rules  for  procedure  in 
such  case  in  this  (Federal)  court,  so  that  whatever  would  be 
lawful  service  of  process  to  bring  a  party  into  court  if  the 
action  were  in  a  court  of  competent  jurisdiction  under  the  state 
government  is  lawful  and  sufficient  for  the  purpose  of  actions 
commenced  in  this  court." 

Substituted  service  is  governed  by  §  57,  Judicial  Code,  as  set  out 
in  the  succeeding  section.  The  sufficiency  of  service  to  give 
jurisdiction,  as  in  all  other  jurisdictional  matters,  does  not  con- 
form to  state  laws,  but  the  Federal  courts  determine  for  them- 
selves.29 

Service  on  corporations  conforms  as  a  general  rule  to  state  laws.80 

On  foreign  corporations  state  laws  will  generally  be  followed  if 
the  corporation  is  doing  business  in  the  state  of  the  forum.31 

§  656.  Service  by  Publication  under  §  57,  Judicial  Code. 

Service  by  publication  does  not  come  within  the  above  rule. 
State  statutes  regulating  the  manner  of  bringing  in  absent  de- 
fendants by  publication  are  not  applicable  to  the  Federal  courts. 
The  mode  provided  by  §  57,  Judicial  Code,  for  acquiring  juris- 
diction over  an  absent  defendant  by  publication  is  exclusive  of 
every  other  mode,82  and  must  be  strictly  followed.33  The  action 

27  Toledo  Computing  S.   Co.  v.   Computing   Scale   Co.   142   Fed.   919,   74   C. 
C.  A.  89;  Amy  v.  Watertown,  130  U.  S.  302,  32  L.  ed.  947,  9  Sup.  Ct.  Rep. 
530;   Swarts  v.  Christie  Grain  and  Stock  Co.  166  Fed.  338. 

28  Van  Dresser  v.  Oregon  R.  Co.  48  Fed.  202. 

29  Michigan  Trust  Co.  v.  Ferry,  17,5   Fed.  667,  99   C.  C.  A.   221;    Clark  v. 
Wells,  203  U.  S.  164.  51  L.  ed.  138,  27  Sup.  Ct.  Rep.  43. 

30  Higham  v.  Iowa  State  Travelers  Ass'n,  183  Fed.  845. 

31  McCord  Lumber  Co.  v.  Doyle,  97  Fed.  22,  38  C.  C.  A.  34,  and  numerous 
cases  cited  in  4  F.  S.  A.  569. 

32  Bracken  v.  Union  Pac.  R.  Co.  56  Fed.  447,  5  C.  C.  A.  548;   New  York 
Life  Ins.  Co.  v.  Bangs,  103  U.  S.  435,  26  L.  ed.  580. 

33  Jennings   v.   Johnson,   148   Fed.   337,   78   C.   C.   A.   329;    King  v.   Davis, 
137  Fed.  207. 


§    656  PROCESS    LAW    ACTIONS  351 

must  be  in  rem  for  the  statute  to  apply.3*    Attachment  cannot  be 
made  a  basis  for  substituted  service  in  the  Federal  courts.86 

§  57,  Judicial  Code,*  36  8 tat.  at  L.  1102,  Comp.  St. 
1911,  p.  152,  1912  Supp.  F.  8.  A.  p.  155..  "When  in  any 
suit  commenced  in  an/  district  court  of  the  United  States 
to  enforce  any  legal  or  equitable  lien  upon  or  claim  to,  or  to 
remove  any  encumbrance  or  lien  upon  the  title  to  real  or 
personal  property  within  the  district  where  such  suit  is 
brought,  one  or  more  of  the  defendants  therein  shall  not  be 
an  inhabitant  of  or  found  within  the  said  district,  or  shall 
not  voluntarily  appear  thereto,  it  shall  be  lawful  for  the 
court  to  make  an  order  directing  such  absent  defendant  or 
defendants  to  appear,  plead,  answer,  or  demur  by  a  day 
certain  to  be  designated,  which  order  shall  be  served  on  such 
absent  defendant  or  defendants,  if  practicable,  wherever 
found,  and  also  upon  the  person  or  persons  in  possession  or 
charge  of  said  property,  if  any  there  be;  or  where  such  per- 
sonal service  upon  such  absent  defendant  or  defendants  is 
not  practicable,  such  order  shall  be  published  in  such  manner 
as  the  court  may  direct,  not  less  than  once  a  week  for  six 
consecutive  weeks.  In  case  such  absent  defendant  shall  not 
appear,  plead,  answer,  or  demur  within  the  time  so  limited, 
or  within  some  further  time,  to  be  allowed  by  the  court,  in 
its  discretion,  and  upon  proof  of  the  service  or  publication 
of  said  order  and  of  the  performance  of  the  directions  con- 
tained in  the  same,  it  shall  be  lawful  for  the  court  to  enter- 
tain jurisdiction,  and  proceed  to  the  hearing  and  adjudica- 
tion of  such  suit  in  the  same  manner  as  if  such  absent  defend- 
ant had  been  served  with  process  within  the  said  district ; 
but  said  adjudication  shall,  as  regards  said  absent  defend- 
ant or  defendants  without  appearance,  affect  only  the  prop- 
erty which  shall  have  been  the  subject  of  the  suit  and  under 
the  jurisdiction  of  the  court  therein,  within  such  district; 
and  when  a  part  of  the  said  real  or  personal  property  against 
which  such  proceedings  shall  be  taken  shall  be  within  an- 
other district,  but  within  the  same  state,  such  suit  may  be 
brought  in  either  district  in  said  state:  Provided,  however, 
That  any  defendant  or  defendants  not  actually  personally 
notified  as  above  provided  may,  at  any  time  within  one  year 

34  Jones  v.  Gould,   141   Fed.  698;   and  also  Jones  v.  Gould,   149   Fed.  153, 
80  C.  C.  A.  1. 
35$   613,   infra. 
a  For  Annotation  of  this  §  57,  Judicial  Code,  see  footnote  *,  ante,  our  §  16(5. 


352         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  058 

after  final  judgment  in  any  suit  mentioned  in  this  section, 
enter  his  appearance  in  said  suit  in  said  district  court,  and 
thereupon  the  said  court  shall  make  an  order  setting  aside 
the  judgment  therein  and  permitting  said  defendant  or  de- 
fendants to  plead  therein  on  payment  by  him  or  them  of  such 
costs  as  the  court  shall  deem  just;  and  thereupon  said  suit 
shall  be  proceeded  with  to  final  judgment  according  to  law." 

§  657.  Special  Appearance.  A  special  appearance  is  for 
the  sole  purpose  of  attacking  the  jurisdiction  of  the  court.  The 
Federal  courts,  being  courts  of  limited  jurisdiction,  encourage 
special  appearances,  and  will  not,  therefore,  give  such  an  ap- 
pearance the  force  and  effect  of  a  general  appearance  though  that 
may  be  the  effect  of  state  laws.36 

§  658.  Suit  in  Forma  Pauperis. 

§  3,  Act  July  20,  1892,  ch.  209,  27  Stat.  at  L.  252, 
Comp.  Stat.  1901,  p.  707,  2  F.  8.  A.  294,  Rose's  Code,  § 
1825.  "The  officers  of  such  court  shall  issue,  serve  all  pro- 
cess, and  perform  all  duties  in  such  cases,  and  witnesses 
shall  attend  as  in  other  cases,  and  the  plaintiff  shall  have 
the  same  remedies  as  are  provided  by  law  in  other  cases." 

36  Southern  P..  Co.  v.  Denton,  146  U.  S.  208,  36  L.  ed.  945,  13  Sup.  Ct.  Rep. 
44;  and  other  cases  cited  in  Simkins  "A  Federal  Suit  at  Law"  and  Simkins 
Federal  Equity  Suit,  2d  ed.,  pp.  329  to  338. 

37  Boyle  v.   Great  Northern  R.  Co.  63   Fed.   539;    Donovan  v.   Salem   &   P. 
Nav.  Co.   134   Fed.   317;   Taylor  v.  Adams  Exp.   Co.   164   Fed.   616,  90   C.  C. 
A.  526;  Columb  v.  Webster  Mfg.  Co.  76  Fed.  198;  Gallaway  v.  State  Natl.  Bank 
of  Ft.  Worth,  186  U.  S.  177,  46  L.  ed.  1111,  22  Sup.  Ct.  Rep.  811. 


CHAPTER  22. 

DEFENSIVE  PLEADING  LAW  ACTIONS. 

Sec. 

670.  In  General. 

671.  Time  and  Order  of  Pleading  Conform  to  State  Laws. 

672.  Default  Judgment. 

673.  Forms  of  Pleadings  Conform  to  State  Practice. 

674.  Sufficiency,  Scope,  and  Manner  of  Pleading  Conform  to  State  Laws. 

675.  Equitable  Defenses  Not  Permitted.     Exception. 

676.  Amendment  of  Pleading. 

§  670.  In  General.  The  time  for  pleading,  unless  special 
rules  determine  otherwise,  follows  state  practice.1 

Under  §  918,  R.  S.,  the  district  courts  may  make  rules  for  enter- 
ing judgments  by  default,  and  under  §  961,  R.  Si,'  provision  is 
made  for  judgment  by  default  in  suits  by  the  government  on 
bonds.  Defaults  may,  however,  follow  state  practice.2 

The  form  of  pleading  is  that  provided  by  the  state  law  wherein 
the  district  lies.3 

The  sufficiency  and  scope  of  the  pleading  is  governed  by  state 
laws.4 

State  laws  are  also  followed  except  as  to  equitable  defenses, 
which  are  not  permitted,  except  equitable  estoppel.5 

Amendment  of  pleading  is  under  §§  918,  954,  R.  S.6 

§  671.  Time  and  Order  of  Pleading  Conform  to  State 
Laws.  The  state  statutes  and  practice  are  followed  as  to  the 
time  for  pleading.7 

Under  §  914,  R.  S.,  the  district  courts  of  the  United  States  are 

l§  671,  infra.  »§  672,  infra.  3§  673,  infra. 

*  S  674,  infra.  6  §  675,  infra.     6  §  676,  infra. 

7  \Verthcim  v.  Continental  R.  Co.  11  Fed.  689,  20  Blatchf.  508;  Ricard 
v.  Now  Providence  Tp.  5  Fed.  433;  Phenix  Ins.  Co.  v.  Charleston  Bridge  Co. 
65  Fed.  628,  13  C.  C.  A.  58. 

Montg.— 23.  353 


354        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  672 

authorized  to  follow  the  practice  of  the  courts  of  the  state  in 
regard  to  the  order  of  pleading,  including  the  manner  in  which 
objections  may  be  taken  to  the  jurisdiction  and  the  question  as 
to  whether  objections  to  jurisdiction  and  defenses  on  the  merits 
should  be  pleaded  successively  or  together.8  Thus,  the  state 
laws  have  been  followed  as  to  the  order  of  filing  pleas  in  abate- 
ment.9 

§  672.  Default  Judgment. 

§  918,  R.  8.,  Comp.  Slat.  1901,  p.  685,  4  F.  8.  A.  585, 
Rose's  Code,  §  805.  ".  .  .  District  courts  may,  from 
time  to  time,  and  in  any  manner  not  inconsistent  with  any 
law  of  the  United  States,  .  .  .  make  rules  and  orders 
directing  .  .  .  the  entering  and  making  of  judgments  by 
default.  .  .  ." 

§  961,  R.  8.,  Comp.  Stat.  1901,  p.  699,  4  F.  8.  A.  604, 
Rose's  Code,  §  1858.  "In  all  suits  brought  to  recover  the 
forfeiture  annexed  to  any  articles  of  agreement,  covenant, 
bond,  or  other  specialty,  where  the  forfeiture,  breach,  or 
nonperformance  appears  by  the  default  or  confession  of  the 
defendant,  or  upon  demurrer,  the  court  shall  render  judg- 
ment for  the  plaintiff  to  recover  so  much  as  is  due  according 
to  equity.  And  when  the  sum  for  which  judgment  should 
be  rendered  is  uncertain,  it  shall,  if  -either  of  the  parties  re- 
quest it,  be  assessed  by  a  jury." 

The  state  statute  and  practice  for  setting  aside  judgment  by 
default  has  been  followed.10 

If  the  defendant  fails  to  make  an  appearance  within  the  time 
allowed  for  making  an  appearance  under  the  state  statutes,  it 
would  seem  that  the  plaintiff  might  have  a  judgment  entered  by 
default  in  conformity  therewith,  under  the  rule  that  state  laws 
govern  as  to  time  within  which  to  plead. 

8  Southern  Pac.  Co.  v.  Denton,   146  U.  S.  209,  36  L.  ed.  945,  13  Sup.  Ct. 
Rep.  44. 

9  Tennis   Bros.   Co.   v.   Wetzel   &   T.   R.   C.    140   Fed.    193,   Idem.    145    Fed. 
458,  75   C.  C.  A.  266,  7   Ann.  Cas.  426;    Derk.  P.   Yonkerman   Co.  v.   Chas. 
H.    Fuller's   Advertising   Agency,    135   Fed.    613. 

10  Brown   v.    Philadelphia,    etc.,    R.   Co.   9    Fed.    183;    Republic   Ins.    Co.  v. 
Williams,  3  Biss.  370,  Fed.  Cas.  No.  11,707. 


§  674         DEFENSIVE  PLEADING  LAW  ACTIONS  355 

As  to  what  constitutes  a  sufficient  appearance  to  save  from 
default,  the  state  laws  govern.  Thus,  in  Illinois  a  motion  to 
quash  a  service  of  summons  was  held  to  be  sufficient  appearance,11 
and  in  Nebraska  a  motion  for  security  for  costs  was  sufficient  to 
save  from  default.12  It  would  not  be  safe  in  California  to  rely  on 
£ny  such  pleadings  under  the  California  law  requiring  the  de- 
fendant to  either  demur  or  answer  within  the  time  allowed  to 
plead. 

§  673.  Forms  of  Pleadings   Conform  to   State   Practice. 

The  form  of  defensive  pleading  is  that  existing  in  the  state  court 
of  the  forum,  whether  by  plea,  answer,  demurrer,  or  other  form 
of  defensive  pleading.13 

Thus  a  state  rule  allowing  a  plea  in  abatement  to  the  juris- 
diction and  on  the  merits  to  be  set  up  in  the  answer  may  be 
followed  in  the  Federal  courts.14 

So,  also,  the  verification  of  pleadings  is  governed  by  state  laws 
for  similar  cases  in  the  Federal  courts.15 

§  674.  Sufficiency,  Scope,  and  Manner  of  Pleading  Con- 
form to  State  Laws.  The  sufficiency  and  scope  of  pleadings 
in  actions  at  law  are  matters  in  which  the  district  courts  will 
conform  to  the  practice  of  the  courts  of  record  of  the  states  in  which 
they  are  held.16 

Thus  a  state  law  requiring  a  plea  of  res  judicata  to  be  specially 
pleaded  was  followed  in  the  Federal  court,17  and  a  state  law 
giving  effect  to  general  issue  was  followed  by  the  Federal  courts.18 

11  Wall  v.  Chesapeake,  etc.,  R.  Co.  95  Fed.  398,  37  C.  C.  A.  129. 

12  Schofield  v.  Palmer,  137  Fed.  754. 

13  Roberts  v.  Lewis,  144  U.  S.  656,  12  Sup.  Ct.  Rep.  781,  36  L.  ed.  582. 
1*  Draper  v.  Town  of  Springport,  21  Blatchf.  240,  15  Fed.  328. 

15  St.  Louis,  etc.,  R.  Co.  v.  Knight,  122  U.  S.  96,  30  L.  ed.   1083,  7  Sup. 
Ct.  Rep.   1132;    County  of  Rails  v.  Douglass,  105  U.  S.  728,  26  L.  ed.  957; 
Cottier  v.  Stimson,  9  Sawy.  435,  18  Fed.  689. 

16  Glenn  v.  Sumner,  132  U.  S.  156,  33  L.  ed.  301,  10  Sup.  Ct.  Rep.  41,  and 
other  numerous  cases  cited  in  4  F.  S.  A.  p.  570,  bottom  second  column. 

"Preferred  Ace.  Ins.  Co.  v.  Barker,  93  Fed.  158,  35  C.  C.  A.  250. 

18  Hodges  v.  Easton,  106  U.  S.  410,  27  L.  ed.  170,  1  Sup.  Ct.  Rep.  307; 
Burley  v.  German  Am.  Bank,  111  U.  6.  221,  28  L.  ed.  407,  4  Sup.  Ct.  Rep. 
341. 


T>56          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  675 

The  right  to  plead  a  set-off  or  counterclaim  when  not  equitable 
in  character  will  be  controlled  by  the  state  practice.19 

Questions  of  law  may  be  raised  by  motion  where  state  law  per- 
mits. So,  also,  state  rules  as  to  demurrers  are  followed  in  the 
Federal  courts.20  So,  also,  the  state  pleading  as  to  the  filing  of  a 
replication  or  making  an  issue  without  one  will  be  followed  in 
the  Federal  courts.21 

Amendments,  however,  are  governed  by  §  954,  R.  S.22 

§  675.  Equitable  Defenses  Not  Permitted.  Exception. 
Equitable  defenses,  except  equitable  estoppel,  cannot  be  pleaded  at 
law.  Equitable  estoppel  may  be  pleaded.23 

The  following  are  illustrations  of  cases  where  equitable  defenses 
were  not  permitted,  or  the  defendant  was  compelled  to  enjoin  the 
suit  at  law  in  order  to  avail  himself  thereof: 

Laches,24  want  of  consideration,25  improvements  in  good  faith,28 
fi-aud  on  account  of  undue  influence  or  gross  inadequacy  of  con- 
sideration,27 bona  fide  purchaser,28  partnership  settlement,29  equit- 
able title.80  A  very  excellent  discussion  of  this  subject  is  con- 
tained in  chapter  7  of  Simkins'  "A  Federal  Suit  at  Law,"  be- 
ginning page  39. 

Act  June  1,  1874,  ch.  200,  18  Stalk,  at  L.  50,  Comp.  8 tat. 
1901,  p.  581,  6  F.  S.  A.  522,  Roses  Code,  §  28.     "When 

W  Groton  Bridge  &  Mfg.  Co.  v.  American  Bridge  Mfg.  Co.  151  Fed.  879. 

20Sommer  v.  Carbon  Hill  Coal  Co.  89  Fed.  60,  32  C.  C.  A.  156,  59  U. 
S.  App.  519;  Norfolk  &  P.  Traction  Co.  v.  Rephan,  188  Fed.  276,  110  C.  C. 
A.  254. 

21  Stratton  v.  Essex  Co.  Park  Comm.  164  Fed.  901. 

22  §  653,  infra. 

23  Kirk  v.  Hamilton,  102  U.  S.  68,  26  L.  ed.  79;  Campbell  v.  Golden  Cycle 
Mining  Co.  141   Fed.  610,  73  C.  C.  A.  260;   Berry  v.  Seawall,  65  Fed.  742, 
13  C.  C.  A.  101,  31  U.  S.  App.  30. 

24Korsstrom  v.  Barnes,  156  Fed.  284;  United  States  Fidelity  &  G.  Co.  v. 
United  States,  189  Fed.  339.  Ill  C.  C.  A.  71. 

25  Burnes  v.  Scott,  117  U.  S.  582,  29  L.  ed.  992,  6  Sup.  Ct.  Rep.  865. 

26  Doe  ex   dem.   Myrick   v.   Roe,   31    Fed.   98:    Leighton    v.    Young,    52    Fed. 
439,   3   C.  C.  A.   176,   10  U.   S.  App.  298,   18   L.R.A.   266,  but   see   Cooke   v. 
A  very,  147  U.  S.  392.  37  L.  ed.  215,  13  Sup.  Ct.  Rep.  340. 

27  Kilbourn  v.  Sunderlaml,  130  U.  S.  505,  32  L.  ed.  1005,  9  Sup.  Ct.  Rep.  594; 
Boggs  v.  Wann,  58  Fed.  687. 

W  Scott  v.  Neely,  140  U.  S.  Ill,  35  L.  ed.  360,  11  Sup.  Ct.  Rep.  712. 

29  Johnson  v.  Christian,  128  U.  S.  382,  32  L.  ed.  414.  9  Sup.  Ct.  Rep.  87. 

30  Foster  v.  Mora.  98  U.  S.  428,  25  L.  ed.  192. 


§    670  DEFENSIVE  PLEADING  LAW  ACTIONS  357 

an  occupant  of  land,  having  color  of  title,  in  good  faith  has 
made  valuable  improvements  thereon,  and  is,  in  the  proper 
action,  found  not  to  be  the  rightful  owner  thereof,  such  oc- 
cupant shall  be  entitled  in  the  Federal  courts  to  all  the 
rights  and  remedies,  and,  upon  instituting  the  proper  pro- 
ceedings, such  relief  as  may  be  given  or  secured  to  him  by 
the  statutes  of  the  state  or  territory  where  the  land  lies,  al- 
though the  title  of  the  plaintiff  in  the  action  may  have  been 
granted  by  the  United  States  after  said  improvements  were 
so  made." 

§  676.  Amendment  of  Pleading.  §  918,  B.  S.,  permits 
the  Federal  courts  to  make  rules  relating  to  "the  filing  of  plead- 
ings, takipg  of  rules,  .  .  .  and  otherwise  regulate  their  own 
practice;  "  ;1  and  §  954  permits  the  court  to  amend  defects  and 
want  of  form  "in  the  process  or  pleadings,  upon  such  conditions  as 
it  shall,  in  its  discretion  and  by  its  rules,  prescribe."  These 
sections  govern  the  matter  of  amendment  of  pleadings  in  the 
Federal  court,  except  in  so  far  as  state  rules  and  practice  may  be 
adopted  which  are  not  inconsistent  with  the  Federal  rules. 

In  many  cases  amendments  of  pleadings  have  been  allowed  in 
conformity  with  state  practice,  and  in  many  others  they  have 
been  refused.  The  matter  is  entirely  within  the  discretion  of 
the  court,  and  not  reviewable  except  when  there  has  been  a  gross 
abuse  of  discretion.88 

31  §  672,  supra.  82  §  653,  supra. 

33  Lange  v.  Union  P.  R.  Co.  126  Fed.  340,  62  C.  C.  A.  48.  See  on  the  subject 
generally  of  amendment  of  pleadings,  chapter  8,  Simkins,  "A  Federal  Suit 
at  Law,"  and  4  F.  S.  A.  note.  p.  572. 


CHAPTER  23. 

CONTINUANCES  AND  ADJOURNMENTS. 

Sec. 

690.  Continuances — In  General. 

691.  Continuances  on  Death   of  Party. 

692.  Survival  of  Action. 

693.  Continuance  of  Suit  against  Delinquent  in  Suit  for  Public  Moneys. 

694.  Continuances  of  Suits  under  Postal  Laws. 

695.  Continuances  of  Suits  on  Debentures. 

696.  Continuances  of  Suits  under  Tariff  Laws. 

§  690.  Continuances — In  General.  This  matter  conforms 
to  state  practice  under  §  914,  R.  S.,  there  being  no  statutory 
provisions  except  those  set  out  in  the  following  sections,  691  to  696 
inclusive:  §  955,  R.  S.,  on  death  of  a  party;  §  956,  R.  S.,  survival 
of  action ;  §  957,  R.  S.,  suits  against  delinquents  for  public  moneys ; 
§  958,  R.  S.,  suits  under  postal  laws ;  §  959,  R.  S.,  suits  on  deben- 
tures; §  960,  R.  S.,  suits  under  tariff  laws. 

If  the  judge  is  unable  to  act,  the  marshal  or  clerk  may  adjourn 
court  under  §  12,  Judicial  Code,  quoted  in  our  §  63,  above. 

If  the  office  of  judge  becomes  vacant,  the  clerk  may  continue 
pending  proceedings  under  §  22  of  the  Judicial  Code,  quoted  in 
our  §  64,  above. 

Trials  commenced  in  a  district  court  may  be  concluded  in  a 
new  term  under  §  8  of  the  Judicial  Code,  quoted  in  our  §  65, 
above. 

§  691.  Continuances  on  Death  of  Party. 

§  955,  R.  8.,  Comp.  Stat.  1901,  p.  697,  Rose's  Code,  §  81b, 
4  F.  S.  A.  601.  "When  either  of  the  parties,  whether  plaintiff 
or  petitioner  or  defendant,  in  any  suit  in  any  court  of  the 
United  States,  dies  before  final  judgment,  the  executor  or 
administrator  of  such  deceased  party  may,  in  case  the  cause 
of  action  survives  by  law,  prosecute  or  defend  any  such  suit 

358 


§    693  CONTINUANCES    AND    ADJOURNMENTS  359 

to  final  judgment.  The  defendant  shall  answer  accordingly; 
and  the  court  shall  hear  and  determine  the  cause  and  render 
judgment  for  or  against  the  executor  or  administrator,  as  the 
case  may  require.  And  if  such  executor  or  administrator, 
having  been  duly  served  with  a  scire  facias  from  the  office 
of  the  clerk  of  the  court  where  the  suit  is  depending,  twenty 
days  before  hand,  neglects  or  refuses  to  become  party  to  the 
suit,  the  court  may  render  judgment  against  the  estate  of 
the  deceased  party,  in  the  same  manner  as  if  the  executor  01 
administrator  had  voluntarily  made  himself  a  party.  The 
executor  or  administrator  who  becomes  a  party,  as  aforesaid, 
shall,  upon  motion  to  the  court,  be  entitled  to  a  continuance 
of  the  suit  until  the  next  term  of  said  court." 

§  692.  Survival  of  Action. 

§  956,  R.  8.,  Comp.  Stat.  1901,  p.  697,  Rose's  Code,  § 
815,  4  F.  8.  A.  603.  "If  there  are  two  or  more  plaintiffs  or 
defendants,  in  a  suit  where  the  cause  of  action  survives  to 
the  plaintiff  or  against  the  surviving  defendant,  and  one  or 
more  of  them  dies,  the  writ  or  action  shall  not  be  thereby 
abated ;  but,  such  death  being  suggested  upon  the  record, 
the  action  shall  proceed  at  the  suit  of  the  surviving  plaintiff 
against  the  surviving  defendant." 

§  693.  Continuance  of  Suit  against  Delinquent  in  Suit  for 
Public  Moneys. 

§  957,  R.  8.,  Comp.  Stat.  1901,  p.  698,  Rose's  Code,  § 
1888,  2  F.  8.  A.  44.  "When  suit  is  brought  by  the  United 
States  against  any  revenue  officer  or  other  person  account- 
able for  public  money,  who  neglects  or  refuses  to  pay  into 
the  Treasury  the  sum  or  balance  reported  to  be  due  to  the 
United  States,  upon  the  adjustment  of  his  account  it  shall 
be  the  duty  of  the  court  to  grant  judgment  at  the  return 
term,  upon  motion,  unless  the  defendant  in  open  court  (the 
United  States  attorney  being  present)  makes  and  subscribes 
an  oath  that  he  is  equitably  entitled  to  credits  which  had 
been,  previous  to  the  commencement  of  the  suit,  submitted 
to  the  accounting  officers  of  the  Treasury,  and  rejected ; 
specifying  in  the  affidavit  each  particular  claim  so  rejected, 
and  that  he  cannot  then  safely  come  to  trial.  If  the  court, 
when  such  oath  is  made,  subscribed,  and  filed,  is  thereupon 
satisfied,  a  continuance  until  the  next  succeeding  term  may 
be  granted.  Such  continuance  may  also  be  granted  when  the 
suit  is  brought  upon  a  bond  or  other  sealed  instrument,  and 
the  defendant  pleads  non  est  factum,  or  makes  a  motion  to 


300         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  69(5 

the  court,  verifying  such  plea  or  motion  by  his  oath,  and  the 
court  thereupon  requires  the  production  of  the  original  bond, 
contract,  or  other  paper  certified  in  the  affidavit.  And  no 
continuance  shall  be  granted  except  as  herein  provided." 

§  694.  Continuances  of  Suits  under  Postal  Laws. 

§  958,  R.  8.f  Comp.  Mat.  1901,  p.  698,  Rose's  Code,  § 
1409,  4  F.  8.  A.  603.  "In  suits  arising  under  the  postal 
laws  the  court  shall  proceed  to  trial,  and  render  judgment 
at  the  return  term ;  but  whenever  service  of  process  is  not 
made  at  least  twenty  days  before  the  return  day  of  such  term 
the  defendant  is  entitled  to  one  continuance,  if,  on  his  state- 
ment, the  court  deems  it  expedient ;  and  if  he  makes  affidavit 
that  he  has  a  claim  against  the  Postoffice  Department,  which 
has  been  submitted  to  and  disallowed  by  the  sixth  auditor,, 
specifying  such  claim  in  his  affidavit,  and  that  he  could  not 
be  prepared  for  trial  at  such  term  for  want  of  evidence,  the 
court,  if  satisfied  thereof,  may  grant  a  continuance  until 
the  next  term." 

§  695.  Continuances  of  Suits  on  Debentures. 

§  959,  R.  8.,  Comp.  Stat.  1901,  p.  699,  Roses  Code,  % 

1394,  4  F.  8.  A.   604.     "In  all  suits  for  the  recovery  of 
money  upon  debentures  issued  by  the  collectors  of  customs, 
under  any  act  for  the  collection  of  duties,  it  shall  be  the  duty 
of  the  court  to  grant  judgment  at  the  return  term,  unless 
the  defendant,  in  open  court,  exhibits  some  plea,  on  oath,  by 
which  the  court  is  satisfied  that  a  continuance  is  necessary 
to  the  attainment  of  justice;  in  which  case,  and  not  other- 
wise, a  continuance  until  the  next  term  may  be  granted/' 

§  696.  Continuances  of  Suits  under  Tariff  Laws. 

§  960,  R.  8.,  Comp.  Stat.  1901,  p.  699,  Rose's  Code,  § 

1395,  4  F.  8.  A.  604.     "When  suit  is  brought  on  any  bond 
for  the  recovery  of  duties  due  to  the  United  States,  it  shall 
be  the  duty  of  the  court  to  grant  judgment  at  the  return 
term,  upon  motion,  unless  the  defendant,  in  open  court  (the 
United  States  attorney  being  present),  makes  oath  that  an- 
error  has  been  committed  in  the  liquidation  of  the  duties 
demanded  upon  such  bond,  specifying  the  errors  alleged  to 
have  been  committed,  and  that  the  same  have  been  notified 
in  writing  to  the  collector  of  the  district  before  the  said 
return  term ;  whereupon  a  continuance  may  be  granted  until 
the  next  term,  and  no  longer,  if  the  court  is  satisfied  that 
such  continuance  is  necessary  for  the  attainment  of  justice." 


CHAPTER  24. 

MISCELLANEOUS  INCIDENTAL  MATTERS. 

Sec. 

710.  Consolidation  of  Cases. 

711.  Discovery — At  Law. 

712.  Motion  and  Notice  to  Produce  Books  or  Papers  in  Civil  Suits  under 

Customs-Revenue  Laws. 

713.  Dismissal  or  Nonsuit. 

714.  Verification — Oaths — Acknowledgments. 

§  710.  Consolidation  of  Cases. 

§  921,  R.  S.,  Comp.  Stat.  1901,  p.  685,  Rose's  Code,  § 
823,  4  F.  S.  A.  587.  "When  causes  of  a  like  nature  or 
relative  to  the  same  question  are  pending  before  a  court  of 
the  United  States,  or  of  any  territory,  the  court  may  make 
such  orders  and  rules  concerning  proceedings  therein  as  may 
be  conformable  to  the  usages  of  courts  for  avoiding  unnec- 
essary costs  or  delay  in  the  administration  of  justice,  and 
may  consolidate  said  causes  when  it  appears  reasonable  to 
do  "so." 

§  920,  R.  S.,  Comp.  Stat.  1901,  p.  685,  4  F.  8.  A.  586, 
Rose's  Code,  §  1384.  "Whenever  two  or  more  things  be- 
longing to  the  same  person  are  seized  for  an  alleged  violation 
of  the  revenue  laws,  the  whole  must  be  included  in  one  suit ; 
and  if  separate  actions  are  prosecuted  in  such  cases,  the 
court  shall  consolidate  them." 

§  711.  Discovery — At  Law. 

§  724,  R.  S.,  Comp.  Stat.  1901,  p.  583,  3  F.  S.  A. 
2.  "In  the  trial  of  actions  at  law,  the  courts  of  the  United 
States  may,  on  motion  and  due  notice  thereof,  require  the 
parties  to  produce  books  or  writings  in  their  possession  or 
power  which  contain  evidence  pertinent  to  the  issue,  in  cases 
and  under  circumstances  where  they  might  be  compelled  to 
produce  the  same  by  the  ordinary  rules  of  proceedings  in 

361 


362         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §   713 

chancery.  If  a  plaintiff  fails  to  comply  with  such  order, 
the  court  may,  on  motion,  give  like  judgment  for  the  defend- 
ant as  in  cases  of  nonsuit;  and  if  a  defendant  fails  to  com- 
ply with  such  order,  the  court  may,  on  motion,  give  judg- 
ment against  him  by  default." 

§  712.  Motion  and  Notice  to  Produce  Books  or  Papers 
in  Civil  Suits  under  Customs-Revenue  Laws. 

§  5,  Act  June  22,  181k,  ch.  391,  Comp.  St.  1901,  p. 
2019,  3  F.  S.  A.  42.  "That  in  all  suits  and  proceedings 
other  than  criminal,  arising  under  any  of  the  revenue  laws 
of  the  United  States,  the  attorney  representing  the  govern- 
ment, whenever,  in  his  belief,  any  business  book,  invoice, 
or  paper,  belonging  to  or  under  control  of  the  defendant 
or  claimant,  will  tend  to  proye  any  allegation  made  by  the 
United  States,  may  make  a  written  motion,  particularly 
describing  such  book,  invoice,  or  paper,  and  setting  forth  the 
allegation  which  he  expects  to  prove ;  and  thereupon  the  court 
in  which  suit  or  proceeding  is  pending  may,  at  its  discretion, 
issue  a  notice  to  the  defendant  or  claimant  to  produce  such 
book,  invoice,  or  paper  in  court,  at  a  day  and  hour  to  be 
specified  in  said  notice,  which,  together  with  a  copy  of  said 
motion,  shall  be  served  formally  on  the  'defendant  or  claim- 
ant by  the  United  States  marshal  by  delivering  to  him  a 
certified  copy  thereof,  or  otherwise  serving  the  same  as 
original  notices  of  suit  in  the  same  court  are  served;  and 
if  the  defendant  or  claimant  shall  fail  or  refuse  to  produce 
such  book,  invoice,  or  paper  in  obedience  to  such  notice,  the 
allegations  stated  in  the  said  motion  shall  be  taken  as  con- 
fessed unless  his  failure  or  refusal  to  produce  the  same 
shall  be  explained  to  the  satisfaction  of  the  court.  And 
if  produced,  the  said  attorney  shall  be  permitted,  under  the 
direction  of  the  court,  to  make  examination  (at  which  ex- 
amination the  defendant  or  claimant,  or  his  agent,  may  be 
present)  of  such  entries  in  said  book,  invoice,  or  paper  as 
relate  to  or  tend  to  prove  the  allegation  aforesaid,  and  may 
offer  the  same  in  evidence  on  behalf  of  the  United  States. 
But  the  owner  of  said  books  and  papers,  his  agent  or  at- 
torney, shall  have,  subject  to  the  order  of  the  court,  the 
custody  of  them,  except  pending  their  examination  in  court 
as  aforesaid." 

§  713.  Dismissal  or  Nonsuit.       Except   in  suits  lacking  a 
ground  of  Federal  jurisdiction,  governed  by  §  37,  Judicial  Code, 


§    714  MISCELLANEOUS    INCIDENTAL    MATTEHS  363 

set  out  in  §  601,  above,  the  dismissal  by  plaintiff,  and  the  granting 
of  a  nonsuit,  conform  to  state  practice,  there  being  no  statutory 
provisions  applicable. 

Thus  under  a  state  law  plaintiff  in  a  Federal  suit  was  per- 
mitted to  dismiss,  without  prejudice,  before  final  submission  to 
the  jury,  although  the  judge  had  stated  that  he  would  sustain  a 
motion  to  direct  a  verdict  for  defendant. 

§  714.  Verification — Oaths — Acknowledgments. 

§  1118,  R.  8.,  Comp  St.  1901,  p.  1211,  4  F.  8.  A.  165. 
"In  all  cases  in  which,  under  the  laws  of  the  United 
States,  oaths  or  acknowledgments  may  now  be  taken  or  made 
before  any  justice  of  the  peace  of  any  state  or  territory,  or 
in  the  District. of  Columbia,  they  may  hereafter  be  also 
taken  or  made  by  or  before  any  notary  public  duly  ap- 
pointed in  any  state,  district,  or  territory,  or  any  of  the 
commissioners  of  the  circuit  courts,  and,  when  certified  un- 
der the  hand  and  official  seal  of  such  notary  or  commis- 
sioner, shall  have  the  same  force  and  effect  as  if  taken  or 
made  by  or  before  such  justice  of  the  peace." 


CHAPTER  25. 

TRIAL— LAW  ACTIONS. 

Sec. 

730.  In  General, 

731.  Method   of   Trial. 

732.  Cases  to  Which  Provision  Not  Applicable. 

733.  Constitutional  Jury — Twelve  Men. 

734.  Qualifications  and   Exemptions — In  General. 

735.  Same — Under  Civil  Rights  Acts. 

736.  Same — Penalty  for  Exclusion. 

737.  Exempt  after  Serving  Term  in  a  Year. 

738.  Jurors — From  Where  Drawn. 
730.  Impaneling  Jurors. 

740.  Venire — Issuance  and  Return. 

741.  Talesmen  for  Petit  Juries. 

742.  Special  Juries. 

743.  Challenges. 

744.  Trial  by  Judge. 

745.  Mode  of  Proof — Law  Actions. 

746.  The  Taking  of   Exceptions   Does  Not  Conform   to   State  Practice. 

747.  Time  for  Excepting  to  Rulings. 

748.  Conduct  of  the  Trial. 

749.  Charge  to  the  Jury — Instructions. 

§  730.  In  General.  After  the  case  is  at  issue,  the  next  step 
is  the  production  of  proof  which  under  §  861,  R.  S.,  must  he 
in  open  court,  except  as  otherwise  specially  provided.  (§  745, 
infra.) 

There  may  be  material  testimony  of  witnesses  who  cannot  be 
produced  in  open  court,  whose  testimony  should,  if  possible, 
be  obtained  by  depositions.  The  grounds  of  taking  these  dep- 
ositions are  set  out  in  §§  863  and  866,  R.  S.  The  methods  of 
taking  such  depositions  are  provided  in  §§  863  to  870,  R.  S., 
inclusive,  and  may  be  according  to  state  practice  under  the  act 
of  March  9,  1892,  ch.  14,  27  Stat.  at  L.  7.  The  statutory  provi- 
sions as  to  depositions  apply  alike  to  law  and  equity  causes,  and, 

364 


§    732  TRIAL LAW   ACTIONS  3 1) 5 

therefore,  have  not  been  treated  separately  for  each  kind  of  suit. 
The  subject  of  depositions  is  treated  in  chapter  16,  above. 

Most  of  the  statutory  provisions  relating  to  evidence  and  wit- 
nesses in  like  manner,  apply  alike  to  law  and  equity  cases,  and 
l>ave  been  treated  under  the  general  headings  "Evidence,"  in 
chapter  14,  above,  and  "Witnesses,"  in  chapter  15,  above. 

This  chapter  deals  with  the  methods  of  trial,  mode  of  proof, 
and  conduct  of  the  trial  in  law  actions,  including  the  provisions 
relating  to  the  qualifications  and  exemptions  of  jurors,  the  selec- 
tion of  the  jury,  venire,  talesmen,  challenges,  etc.,  and  also 
respecting  the  charge  to  the  jury. 

The  jury's  verdict,  motion  for  new  trial,  and  bill  of  exceptions, 
might  be  traced  under  the  heading  of  this  chapter,  "Trial-Law 
Actions,"  but  these  matters  are  more  properly  the  end  of  the 
trial  than  of  the  trial  itself,  and  are,  therefore,  treated  in  the 
following  chapter,  No.  26. 

§  731.  Method  of  Trial. 

PL  §  566,  R.  S.t  Comp.  Stat.  1901,  p.  461,  Roses  Code, 
§§  911  and  1283,  4  F.  8.  A.  236.  "The  trial  of  issues  of 
fact  in  the  district  courts,  in  all  causes  except  in  equity  and 
cases  of  admiralty  and  maritime  jurisdiction  and  except  as 
otherwise  provided  in  proceedings  in  bankruptcy,  shall  be  by 
jury.  ..."  , 

This  right  to  a  jury  trial  is  guaranteed  in  common-law  cases 
by  the  7th  Amendment  to  the  United  States  Constitution,  as 
follows : 

"In  suits  at  common-law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  to  trial  by  jury  shall 
be  preserved.  .  .  ." 

§  732.  Cases  to  Which  Provision  Not  Applicable.  This 
provision  in  the  7th  Amendment  refers  only  to  cases  at  common- 
law  where  the  amount  in  controversy  exceeds  twenty  dollars. 


306         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  733 

The  clause  does  not  prevent  a  waiver  of  trial  by  jury  in  com- 
mon-law cases.1 

The  guaranty  of  trial  by  jury  refers  only  to  the  Federal  and 
not  the  state  courts,  and  is  a  limitation  on  the  powers  of  the 
Federal  government.2 

It  applies  to  the  District  of  Columbia  and  to  the  organized 
territories  which  have  been  brought  under  the  Constitution,  and 
to  their  legislative  and  judicial  officers  as  also  to  a  territorial 
governor,  and  to  tribunals  established  under  a  provisional  govern- 
ment in  territory  covered  by  the  Constitution,  but  not  to  con- 
sular courts.3 

The  constitutional  provision  does  not  apply  to  equity  cases,4 
nor  to  suits  in  admiralty.5  §  566,  R.  S.,  especially  excepts  those 
kinds  of  causes.  The  constitutional  amendment  does  not  apply 
in  suits  against  the  United  States  in  the  court  of  claims.6 

§  733.  Constitutional  Jury — Twelve  Men.  Trial  by  jury 
means  a  common-law  jury  of  twelve  men,  in  the  presence  of 
and  under  the  supervision  of  a  judge,  who  instructs  them  as  to 
the  law.7  A  territorial  law  permitting  a  verdict  by  any  number 
of  jurors  less  than  twelve  is  invalid.8 

1  Parsons  v.  Armour,  3  Pet.  425,  7  L.  ed.  724. 

ZMcBride  v.  Stradley,  103  Ind.  465,  2  N.  E.  358;  Seeley  v.  Bridgeport,  53 
Conn.  1,  22  Atl.  1017;  Livingston  v.  Moore,  7  Pet.  469,  8  L.  ed.  751; 
Walker  v.  Sauvinet,  92  U.  S.  92,  23  L.  ed.  678;  Baylis  v.  Travelers  Ins.  Co. 
113  U.  S.  321,  28  L.  ed.  989,  5  Sup.  Ct.  Rep.  494. 

3  Capital  G.  Co.  v.  Hof,  174  U.  S.  1,  43  L.  ed.  873,  19  Sup.  Ct.  Rep.  580; 
Walker  v.  New  Mexico  R.  R.  Co.  165  U.  S.  595,  41  L.  ed.  837.  17  Sup.  Ct. 
Rep.  421;  Thompson  v.  Utah,  170  U.  S.  349,  42  L.  ed.  1061,  18  Sup.  Ct.  Rep. 
620;  Whallon  v.  Bancroft,  4  Minn.  109,  Gil.  70;  Claim  of  Reside,  9  Opinions 
of  Atty.  Gen.  200;   Scott  v.  Billgerry,  40  Miss.  119;   In  re  Ross,  140  U.  S. 
464,  35  L.  ed.  581,  11  Sup.  Ct.  Rep.  897. 

4  Barton  v.  Barbour,  104  U.  S.  133,  26  L.  ed.  676;   Woodworth  v.  Rogers, 
3  Wood,  &  M.  135,  .Fed.  Cas.  No.  18,018,  2  Robb.  Pat.  Gas.  625 ;   Buford  v. 
Holley,  28   Fed.   680:    Scott  v.  Bilgerry,  40  Miss.   119;   Motte  v.  Bennett    2 
Fish,* Pat.  642,  Fed.  Cas.  No.  9,884. 

5  The   Huntress,  2   Ware    (Dav.   82)    89,   Fed.   Cas.   No.   6,914;    The  James 
and  Catherine,  Bald.  544.  Fed.  Cas.  No.  756;  United  States  v.  La  Venzeance 
3  Ball.  297,  1  L.  ed.  610. 

BMcElrath  v.  United  States,  102  U.  S.  440,  26  L.  ed.  192;  Torrey  v 
United  States,  42  Fed.  207. 

7  Maxwell  v.  Dow,  176  U.  S.  586,  44  L.  edj  599,  20  Sup.  Ct.  Rep.  448    494- 
Thompson  v.  Utah,  170  U.  S.  343,  42  L.  ed.  1061.  18  Sup.  Ct.  Rep.  620. 

8  American  P.   Co.  v.   Fisher,   166  U.  S.  467.  41   L.  ed.   1079,   17   Sup    Ct 
Rep.   618;    Springville  v.   Thomas,   166   U.   S.   708,   41   L.   ed.   1172,    17    Sup' 


§     737  TRIAL LAW   ACTIONS  3G7 

§  734.  Qualifications  and  Exemptions — In  General. 

§  275 1  Judicial  Code,"  36  Stat.  at  L.  1164,  Comp.  St.  1911, 
p.  239,  1912  Supp.  F.  S.  A.  v.  1,  p.' 245.  "Jurors  to  serve  in 
the  courts  of  the  United  States,  in  each  state  respectively, 
shall  have  the  same  qualifications,  subject  to  the  provisions 
hereinafter  contained,  and  be  entitled  to  the  same  exemp- 
tions, as  jurors  of  the  highest  court  of  law  in  such  state  may 
have  and  be  entitled  to  at  the  time  when  such  jurors  for 
service  in  the  courts  of  the  United  States  are  summoned." 

§  735.  Same— Under  Civil  Rights  Acts. 

§  278,  Judicial  Code?  36  Stat.  at  L.  1165.  Comp.  St. 
1911,  p.  239,  1912  Supp.  F.  S.  A.  v.  1,  p.  246.  "No  citizen 
possessing  all  other  qualifications  which  are  or  may  be  pre- 
scribed by  law  shall  be  disqualified  for  services  as  grand  or 
petit  juror  in  any  court  of  the  United  States  on  account  of 
race,  color,  or  previous  condition  of  servitude." 

§  736.  Same — Penalty  for  Exclusion. 

Pi.  §  4,  Act  March  1,  1875, 18  Stat.  at  L.  336,  Comp.  Stat. 
1901,  p.  1261,  1  F.  S.  A.  801.  "Any  officer  or  other  person 
charged  with  any  duty  in  the  selection  or  summoning  of  ju- 
rors, who  shall  exclude  or  fail  to  summon  any  citizen,  for  the 
cause  aforesaid,  shall,  on  conviction  thereof,  be  deemed 
guilty  of  a  misdemeanor,  and  be  fined  not  more  than  five 
thousand  dollars." 

§  737.  Exempt  after  Serving  Term  in  a  Year. 

§  286,  Judicial  Code,"  36  Stat.  at  L.  1166,  Comp.  St. 
1911,  p.  241,  1912  Supp.  F.  S.  A.  v.  1,  p.  247.  "No  person 
shall  serve  as  a  petit  juror  in  any  district  court  more  than 
one  term  in  a  year;  and  it  shall  be  sufficient  cause  of  chal- 

Ct.  Rep.  717;  Kleinscbmidt  v.  Dunphy,  1  Mont.  118;  Hawaii  v.  Mankichi, 
190  U.  S.  197,  47  L.  ed.  1016.  23  Sup.  Ct.  Rep.  787. 

a  Drawn  from  §  800,  R.  S.  Rose's  Code.  §  1701,  Foster's  Fed.  Prac.  (4th  ed.) 
pp.  1142,  1285,  1397,  1400,  Comp.  St.  1901,  p.  023,  4  F.  S.  A.  737.  which  sec- 
tion is  repealed  by  k  297,  Judicial  Code.  In  general,  Steers  et  al.  v.  United 
States,  192  Fed.  1*  112  C.  C.  A.  423:  United  States  v.  Lewis,  192  Fed.  633. 

b  Re-enacting  proviso  of  §  2  of  Act  of  June  30,  1879,  eh.  52,  21  Stat.  at  L. 
43,  Rose's  Code,  §§  1703,  1704,  1721,  Comp.  St.  1901,  p.  624,  4  F.  S.  A.  749. 

c  Drawn  from  §  812.  R.  S.  Rose's  Code.  §  1713,  Foster's  Fed.  Prac.  (4th  ed.) 
p.  1397,  Comp.  St.  1901,  p.  627,  4  F.  S.  A.  744,  which  section  is  repealed  by 
§  297,  Judicial  Code,  and  from  Act  of  June  30,  1879,  ch.  52,  §  2,  Comp.  St. 
1901,  p.  624,  4  F.  S.  A.  749.  In  general,  Morris  v.  United  States,  161  Fed. 
672,  88  C.  C.  A.  532. 


368  MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE        §    740 

lenge  to  any  juror  called  to  be  sworn  in  any  case  that  he  has 
been  summoned  and  attended  said  court  as  a  juror  at  any 
term  of  said  court  held  within  one  year  prior  to  the  time  of 
such  challenge." 

§  738.  Jurors — From  Where  Drawn. 

§  277,  Judicial  Code*  36  Stat.  at  L.  1164,  Comp.  8t. 
1911,  p.  239,  1912  Supp.  F.  8.  A,  v.  1,  p.  245.  "Jurors 
shall  be  returned  from  such  parts  of  the  district,  from  time 
to  time,  as  the  court  shall  direct,  so  as  to  be  most  favorable 
to  an  impartial  trial,  and  so  as  not  to  incur  an  unnecessary 
expense,  or  unduly  burden  the  citizens  of  any  part  of  the 
district  with  such  service." 

§  739.  Impaneling  Jurors. 

§  276,  Judicial  Code*  36  Stat.  at  L.  1164,  Comp.  St. 
1911,  p.  239,  1912  Supp.  F.  S.  A.  v.  1,  p.  245.  "All  such 
jurors,  grand  and  petit,  including  those  summoned  dur- 
ing the  session  of  the  court,  shall  be  publicly  drawn  from 
a  box  containing,  at  the  time  of  each  drawing,  the  names 
of  not  less  than  three  hundred  persons,  possessing  the  quali- 
fications prescribed  in  the  section  last  preceding,  which 
names  shall  have  been  placed  therein  by  the  clerk  of  such 
court  and  a  commissioner,  to  be  appointed  by  the  judge 
thereof,  or  by  the  judge  senior  in  commission  in  district 
having  more  than  one  judge,  which  commissioner  shall  be 
a  citizen  of  good  standing,  residing  in  the  district  in  which 
such  court  is  held,  and  a  well-known  member  of  the  prin- 
cipal political  party  in  the  district  in  which  the  court  is 
held  opposing  that  to  which  the  clerk  may  belong,  the  clerk 
and  said  commissioner  each  to  place  one  name  in  said  box 
alternately,  without  reference  to  party  affiliations,  until  the 
whole  number  required  shall  be  placed  therein." 

§  740.  Venire — Issuance  and  Return. 

§  279,  Judicial  Code,*  36  Stat.  at  L.  1165,  Comp.  St. 
1911,  p.  240,  1912  Supp.  F.  S.  A.  v.  1,  p.  246.  "Writs 

d  Re-enacting  §  802,  R.  S..  Rose's  Code,  §  1723.  Foster's  Fed.  Prac.  (4th  ed.) 
pp.  1306.  1401,  Comp.  St.  1901,  p.  625,  4  F.  S.  A.  741,  which  section  is  repealed 
by  §  297,  Judicial  Code.  In  general,  May  et  al.  v.  United  States,  199  Fed. 
53.  117  C.  C.  A.  431. 

e  Re-enacting  part  of  §  2  of  Act  of  June  30,  1879,  ch.  52,  21  Stat.  at  L.  43. 
Rose's  Code,  §§  1703.  1704.  1714,  1721,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  1400. 
1405.  Comp.  St.  1901,  p.  624,  4  F.  S.  A.  749. 

'Down  to  the  first  period,  re-enacting  §  803,  R.   S.,  Rose's  Code,  §   1706, 


§   742  TRIAL LAW  ACTIONS  369 

of  venire  facias,  when  directed  by  the  court,  shall  issue 
from  the  clerk's  office,  and  shall  be  served  and  returned  by 
the  marshal  in  person,  or  by  his  deputy ;  or,  in  case  the  mar- 
shal or  his  deputy  is  not  an  indifferent  person,  or  is  in- 
terested in  the  event  of  the  cause,  by  such  fit  person  as  may 
be  specially  appointed  for  that  purpose  by  the  court,  who 
shall  administer  to  him  an  oath  that  he  will  truly  and  im- 
partially serve  and  return  the  writ.  Any  person  named  in 
such  writ  who  resides  elsewhere  than  at  the  place  at  which 
the  court  is  held,  shall  be  served  by  the  marshal  mailing 
a  copy  thereof  to  such  person  commanding  him  to  attend 
as  a  juror  at  a  time  and  place  designated  therein,  which 
copy  shall  be  registered  and  deposited  in  the  postoffice  ad- 
dressed to  such  person  at  his  usual  postoffice  address.  And 
the  receipt  of -the  person  so  addressed  for  such  registered 
copy  shall  be  regarded  as  personal  service  of  such  writ  upon 
such  person,  and  no  mileage  shall  be  allowed  for  the  service 
of  such  person.  The  postage  and  registry  fee  shall  be  paid 
by  the  marshal  and  allowed  him  in  the  settlement  of  his 
accounts." 

§  741.  Talesmen  for  Petit  Juries. 

§  280,  Judicial  Code*  36  Stat.  at  L.  1165,  Comp.  St. 
1911,  p.  240,  1912  Supp.  F.  S.  A.  v.  1,  p.  246.  "When, 
from  challenges  or  otherwise,  there  is  not  a  petit  jury  to 
determine  any  civil  or  criminal  cause,  the  marshal  or  his 
deputy  shall,  by  order  of  the  court  in  which  such  defect  of 
jurors  happens,  return  jurymen  from  the  bystanders  suf- 
ficient to  complete  the  panel;  and  when  the  marshal  or  his 
deputy  is  disqualified  as  aforesaid,  jurors  may  be  so  returned 
by  such  disinterested  person  as  the  court  may  appoint,  and 
such  person  shall  be  sworn^  as  provided  in  the  preceding 
section." 

§  742.  Special  Juries. 

§  281,  Judicial  Code?  36  Stat.  at  L.  1167,  Comp.  St. 
1911,  p.  240,  1912  Supp.  F.  8.  A.  v.  1,  p.  246.  "When 

Foster's  Fed.  Trac.  (4th  ed.)  p.  1401,  Comp.  St.  1901,  p.  625,  4  F.  S.  A.  742, 
which  section  is  repealed  by  §  297,  Judicial  Code.  The  rest  is  new  legislation. 
In  general,  Powers  v.  United  States,  223  U.  S.  303,  56  L.  ed.  448,  32  Sup. 
Ct.  Rep.  281. 

K  Re-enacting  §  804,  R.  S.,  Rose's  Code.  §  1707,  4  F.  S.  A.  742,  Comp.  St. 
1901,  p.  625,  which  section  is  repealed  by  §  297,  Judicial  Code.  In  general, 
Agnew  v.  United  States,  165  U.  S.  36,  41  L.  ed.  624,  17  Sup.  Ct.  Rep.  235. 

to  Re-enacting  §  805,  R.  S.,  Rose's  Code,  §  1708.  Comp.  St.  1901,  p.  626.  4 
Montg. — 24. 


370         MONTGOMERY'S  MANUAL  otf  FEDERAL  PROCEDURE      §  744 

special  juries  are  ordered  in  any  district  court,  they  shall 
be  returned  by  the  marshal  in  the  same  manner  and  form 
as  is  required  in  such  cases  by  the  laws  of  the  several  states." 

§  743.  Challenges. 

Pt.  §  281,  Judicial  Code,1  36  Stat.  at  L.  1166,  Comp.  St. 
1911,  p.  241,  1912  Supp.  F.  8.  A.  v.  1,  p.  248.  ".  .  .  and 
in  all  other  cases,  civil  and  criminal,  each  party  shall  be 
entitled  to  three  peremptory  challenges ;  and  in  all  cases 
where  there  are  several  defendants  or  several  plaintiffs,  the 
parties  on  each  side  shall  be  deemed  a  single  party  for  the 
purposes  of  all  challenges  under  this  section.  All  challenges, 
whether  to  the  array  or  panel,  or  to  individual  jurors  for 
cause  or  favor,  shall  be  tried  by  the  co.urt  without  the  aid 
of  triers." 

§  744.  Trial  by  Judge.  Although  §§  649  and  700,  R.  S., 
specifically  refer  to  trials  by  the  circuit  courts,  and  have  been 
held  to  apply  only  to  the  circuit  courts,  and  not  to  the  district 
courts,  nevertheless  the  new  Judicial  Code  specifically  provides 
for  imposing  the  powers  and  duties  of  the  circuit  courts  upon  the 
district  courts,  thus  allowing  a  waiver  of  jury  trial  and  a  trial 
by  the  judge.  His  findings  of  fact  would  be  equivalent  to  a  verdict 
of  a  jury  under  §§  649,  700,  1011,  R.  S. 

§  291,  Judicial  Code,1  36  Stat.  at  L.  1161,  Comp.  St. 
1911,  p.  243,  1912  Supp.  F.  S.  A.  v.  1,  p.  249.  "Wherever, 
in  any  law  not  embraced  within  this  act,  any  reference  is 
made  to,  or  any  power  or  duty  is  conferred  or  imposed  upon, 
the  circuit  courts,  such  reference  shall,  upon  the  taking 
effect  of  this  act,  be  deemed  and  held  to  refer  to,  and  to  con- 
fer such  power  and  impose  such  duty  upon,  the  district 
courts." 

F.  S.  A.  743,  which  section  is  repealed  by  §  297,  Judicial  Code.  In  general, 
Metropolitan  Railroad  Co.  v.  Moore,  121  U.  S.  558,  30  L.  ed.  1022,  7  Sup. 
Ct.  Rep.  1334. 

i  Drawn  from  §  819,  R.  S.,  Rose's  Code,  §  1715,  Foster's  Fed.  Prae.  (4th  ed.) 
pp.  1400,  1404,  1431,  Comp.  St.  1901,  p.  629,  4  F.  S.  A.  745,  which  is  repealed 
by  §  297,  Judicial  Code.  In  general,  Emanuel  v.  United  States,  196  Fed.  317, 
116  C.  C.  A.  137. 

J  New  legislation.  In  general,  Ex  parte  United  States,  226  U.  S.  420,  57 
L.  ed.  281,  33  Sup.  Ct.  Rep.  170. 


§    746  TRIAL LAW   ACTIONS  371 


§  649,  R.  S.,  Comp.  Stat.  1901,  p.  525,  4  F.  8.  A. 
Rose's  Code,  §  914-  "Issues  of  fact  in  civil  cases  in  any 
circuit  court  may  be  tried  and  determined  by  the  court, 
without  the  intervention  of  a  jury,  whenever  the  parties,  or 
their  attorneys  of  record,  file  with  the  clerk  a  stipulation  in 
writing  waiving  a  jury.  The  finding  of  the  court  upon  the 
facts,  which  may  be  either  general  or  special,  shall  have 
the  same  effect  as  the  verdict  of  a  jury." 

§  700,  R.  S.,  Comp.  Stat.  1901,  p.  570,  4  F.  S.  A.  450, 
Rose's  Code,  §  2082.  "When  an  issue  of  fact  in  any  civil 
cause  in  a  circuit  court  is  tried  and  determined  by  the  court 
without  the  intervention  of  a  jury,  according  to  section  six 
hundred  and  forty-nine,  the  rulings  of  the  court  in  the  prog- 
ress of  the  trial  of  the  cause,  if  excepted  to  at  the  time,  and 
duly  presented  by  a  bill  of  exceptions,  may  be  reviewed  by 
the  Supreme  Court  upon  a  writ  of  error  or  upon  appeal ; 
and  when  the  finding  is  special  the  review  may  extend  to 
the  determination  of  the  sufficiency  of  the  facts  found  to 
support  the  judgment." 

§  745.  Mode  of  Proof — Law  Actions. 

§  861,  R.  S.,  Comp.  Stat.  1901,  p.  661,  3  F.  S.  A.  7, 
Rose's  Code,  §  917.  "The  mode  of  proof  in  the  trial  of  ac- 
tions at  common  law  shall  be  by  oral  testimony  and  by 
examination  of  witnesses  in  open  court,  except  as  herein- 
after provided." 

The  statute  above  quoted  governs  the  practice  of  procuring  tes- 
timony to  be  used  in  the  courts  of  the  United  States,  and  excludes 
anything  in  the  state  practice  to  the  contrary.9 

Open  court  is  in  the  presence  of  the  court  and  jury  at  the  trial.10 

The  exceptions  mentioned  are  provisions  respecting  depositions, 

and  letters  rogatory  set  out  in  chapter  16,  above,  transcripts  and 

copies  of  official  records  and  other  documentary  evidence  set  out 

in  chapter  14,  above. 

§  746.  The  Taking  of  Exceptions  Does  Not  Conform  to 
State  Practice.  Appellate  procedure  in  Federal  courts  neces- 

9  Ex  parte  Fisk,  113  U.  S.  713,  28  L.  ed.  1117,  5  Sup.  Ct.  Rep.  724; 
Union  Pacific  Ry.  Co.  v.  Botsford,  141  U.  S.  250,  35  L.  ed.  734,  11  Sup.  Ct. 
Rep.  1000. 

lOBeardsley  v.  Littell,  14  Blatch.  102,  Fed.  Cas.  No.  1.185. 


372         MONTGOMERY'S  MANUAL  OF  FKHKK.U.  PROCEDURE      §  748 

sarily  must  be  governed  by  their  own  rules,  as  this  is  a  matter 
which  has  to  do  with  the  organization  of  the  judicial  system. 

§  953,  R.  S.,  quoted  §  765,  infra,  is  the  only  statutory  pro- 
vision as  to  preserving  exceptions  except  that  §  700,  R.  S., 
providing  for  trial  of  cases  without  the  intervention  of  a  jury, 
provides  that  "the  ruling  of  the  court  in  the  progress  of  the  trial 
of  the  cause  if  excepted  at  the  time,  and  duly  presented  by  a  bill 
of  exceptions,  may  be  reviewed,"  etc. 

In  this  last-mentioned  section  the  Federal  courts  act  independ- 
ently of  state  statutes' or  state  practice.11  Even  an  agreement  of 
the  parties  cannot  authorize  the  Federal  court  to  depart  from  the 
Federal  rules  in  this  respect.12 

§  953,  R.  S.,  quoted  §  765,  infra,  is  the  only  regulation  as  to 
bills  of  exceptions  in  Federal  courts.13 

§  747.  Time  for  Excepting  to  Rulings.  §  953  does  not 
limit  the  time  within  which  exceptions  shall  be  filed  or  allowed,14 
nor  the  time  to  make,  file,  and  serve  a  bill  of  exceptions.15 

Under  §  700,  R.  S.,  the  ruling  must  be  "excepted  to  at  the  time." 
It  must  show  from  the  record  that  the  party  objected  at  the  trial 
to  the  rulings  and  wished  the  exceptions  noted  and  reduced  to  a 
bill,  and  that  the  party  persisted  in  them.16  The  time  for  presenta- 
tion and  allowance  of  the  bill  of  exceptions  may  be  extended  in  the 
discretion  of  the  court.17 

§  748.  Conduct  of  the  Trial.  The  conduct  of  the  trial  is  a 
matter  of  personal  administration  by  the  judge,  and  does  not, 
therefore,  conform  to  the  state  laws  or  rules  on  that  subject. 

11  United   States  v.  King,   7   How.- 833,   12   L.   ed.   934;    Shipman  v.   Ohio 
Coal  Exch.  70  Fed.  652,  17  C.  C.  A.  313;   Simkins'  "A  Federal  Suit  at  Law," 
pp.  96-7. 

12  Richmond   v.   Smith,    15   Wall.   429,   21   L.   ed.   200;    Kelsey  v.   Forsyth, 
21  How.  85,  16  L.  ed.  32. 

13  Chateaugay   Ore,   etc..    Co.    128    U.    S.   544,    32    L.    ed.   508,   9    Sup.    Ct. 
Ron.  150;   Duncan  v.  Landis,  45  C.  C.  A.  666,  106  Fed.  844. 

M  X.  Y.,  etc.,  R.  Co.  v.  Hyde,  5  C.  C.  A.  461,  56  Fed.  188. 
iSTalbot  v.  Press  Pub.  Co.  80  Fed.  567. 

16  United  States  v.  Jarvis,  3  Woodb.  217,  26  Fed.  Cas.  No.  15,469.  Sim- 
kins'  "A  Federal  Suit  at  Law,"  pp.  96-98. 

"Dalton  v.  Hazelet,  382  Fed.  561,  105  C.  C.  A.  99. 


§    749  TRIAL LAW   ACTIONS  373 

Thus  the  "scintilla  of  evidence  rule"  does  not  apply,18  but  the 
judge,  with  due  deference  to  the  province  of  the  jury  to  pass 
upon  the  weight  and  credibility  of  the  evidence,19  may  withdraw 
the  case  from  the  jury  and  instruct  a  verdict.20 

Likewise  the  judge,  in  his  discretion,  may  permit  the  jury  to 
separate  after  the  charge  is  given,81  or  refuse  to  ask  a  special 
verdict  authorized  by  state  law,22  or  may  comment  on  the  evidence 
though  forbidden  by  state  law.23 

§  749.  Charge  to  the  Jury — Instructions.  The  charge  to  the 
jury  is  within  the  judge's  personal  administration  of  the  case. 

As  stated  in  the  preceding  section,  he  may  comment  on  the 
evidence  and  express  an  opinion  as  to  the  facts,  provided  he  sep- 
arates the  law  from  the  facts  in  his  charge,  giving  the  jury  to 
understand  that  the  determination  of  the  facts  is  their  own  prov- 
ince.24 

The  refusal  to  give  special  charges  after  argument  was  begun 
was  held  not  error  under  a  rule  that  special  charges  should  be 
requested  before  argument.25 

The  instructions  need  not  be  in  writing  even  though  the  state 
law  so  requires,26  nor  need  the  judge  permit  the  instructions  to 
be  taken  by  the  jury  upon  retiring  if  that  rule  be  not  expressly 
adopted  from  the  state  practice.27 

18  Ovanne  v.  Illinois  C.  R.  Co.  151  Fed.  900. 

19  Wichita  R.  &  L.  Co.  v.  Dulaney,   159   Fed.  417,  86  C.  C.  A.  397;   New- 
burger  Cotton  Co.  v.  York  Cotton  Mills,  152  Fed.  398,  81  C.  C.  A.  524. 

20Teis  v.  Smuggler  Min.  Co.  158  Fed.  261,  85  C.  C.  A.  478,  15  L.R.A. 
(N.S.I  893;  MoGuire  v.  Blount,  199  U.  S.  142,  50  L.  ed.  125,  26  Sup.  Ct. 
Rep.  1;  eases  cited  Simkins'  "A  Suit  at  Law,"  pp.  68-9.  note  4  F.  S.  A.  2d 
col.  p.  391. 

21  Liverpool,  etc.,  Co.  v.  1ST.  &  M.  Friedman  Co.  133  Fed.  713.  66  C.  C.  A. 
f>43;   Xndd  v.  Burrows,  91  U.  S.  426,  23  L.  ed.  286. 

22  United  States  Mutual  Ace.  Ass.  v.   Barry,  131  U.  S.  100,  33  L.  ed.  60, 
9  Sup.  Ct,  Rep.  755. 

23Xudd  v.  Burrows,  91  U.  S.  426,  23  L.  ed.  290;  Lincoln  v.  Power,  151 
U.  S.  436,  38  L.  ed.  224,  14  Sup.  Ct.  Rep.  387. 

24  Union  P.  R.  Co.  v.  Thomas,  152  Fed.  371.  81  C.  C.  A.  491.   . 

25  Atchison   T.   &   S.   F.   Ry.   Co.   v.   Hamble,   177    Fed.   644.    101    C.   C.   A. 
270. 

26  Lincoln  v.  Power,  151  U.  S.  436.  38  L.  ed.  224,  14  Sup.  Ct.  Rep.  387. 
87Xudd  v.  Burrows.  91   U.  S.  441,  23  L.  ed.  290;   Western  Union  Tel.  Co. 

v.  Burgess,  47  C.  C.  A.  168,  108  Fed.  26. 


CHAPTER  26. 

VERDTCT— MOTION  FOR  NEW  TRIAL— BILL  OF  EXCEPTIONS. 

Sec. 

760.  Special  Verdict. 

761.  Form  and  Effect  of  General  Verdict. 

762.  Amendment  of  Verdict. 

763.  Judgment  ATon  Obstante  Veredicto. 

764.  Motion  for  New  Trial. 

765.  Bill   of  Exceptions — Authentication   and   Signing. 

766.  Contents  of  Bill  of  Exceptions— Under  C.  C.  A.  Rule  10,  Sup.  Ct.  Rule  4. 

§  760.  Special  Verdict.  The  Federal  courts  are  not  bound  by 
requirements  of  state  statutes  requiring  special  verdicts  on  the 
request  of  either  party.1 

§  761.  Form  and  Effect  of  General  Verdict.  The  form  and 
effect  of  the  verdict  under  the  conformity  act,  §  914,  R.  S.,  are 
matters  in  which  the  Federal  courts  will  follow  the  state  practice.8 

§  762.  Amendment  of  Verdict.  Under  §  954,  R.  S.,  provid- 
ing for  amendment  of  proceedings,  etc.,  in  Federal  courts,  a  ver- 
dict may  be  amended  to  conform  to  technical  requirements.8 

Amendments  should  usually  be  made  before  the  jury  separates,4 
but  may  be  so  amended  during  the  term  by  reference  to  the  judge's 
notes  or  on  other  satisfactory  evidence.5 

1  U.  S.  Mutual  Ace.  Ass.  v.  Barry,  131  U.  S.  119,  33  L.  ed.  60,  9  Sup.  Ct. 
Rep.  755. 

2  Glenn  v.  Sumner,  132  U.  S.  156,  33  L.  ed.  301,  10  Sup.  Ct.  Rep.  41.  and 
other  cases  cited,  4  F.  S.  A.  2d  Col.  p.  574,  and  Simkins,  "A  Federal  Suit  at 
Law,"  p.  120. 

3  Gay  v.  Joplin,   13   Fed.  650,  4  McCrary,  459.     See  note  4   F.   S.  A.   1st 
col.  p.  600. 

*  Pressed  Steel  Car  Co.  v.  Steel  Car  Forge  Co.  149  Fed.  182,  79  C.  C.  A.  130. 
5  Miller  v.  Steele,  153  Fed.  715,  82   C.  C.  A.  572;   Elliott  v.  Gilmore,   145 
Fed.  965. 

374 


§    765  VERDICT NEW    TRIAL BILL    OF    EXCEPTIONS  375 

§  763.  Judgment  Non  Obstante  Veredicto.  A  judgment 
non  obstante  veredicto,  to  wit,  a  judgment  in  favor  of  the  plain- 
tiff notwithstanding  a  verdict  for  defendant,  will  usually  follow 
the  state  method.6 

\ 

§  764.  Motion  for  New  Trial. 

§  269,  Judicial  Code*  36  Stat.  at  L.  1163,  Comp.  St. 
1911,  p.  237,  1912  8upp.  F.  8.  A.  v.  1,  p.  243.  "All  the 
said  courts  shall  have  power  to  grant  new  trials,  in  cases 
where  there  has  been  a  trial  by  jury,  for  reasons  for  which 
new  trials  have  usually  been  granted  in  courts  of  law." 

This  is  a  mattter  of  discretion  with  the  trial  judge,  and  not 
subject  to  review.7 

And  a  new  trial  is  not  necessary  for  purposes  of  obtaining  a 
review  by  the  appellate  court.8 

State  statutes  may  add  to  the  power  of  the  court  to  grant  new 
trials,  as  in  case  of  allowing  two  new  trials  in  ejectment  suits.9 

§  765.  Bill  of  Exceptions — Authentication  and  Signing. 

§  953,  R.  S.,  Comp.  Stat.  1901,  p.  696,  4  F.  8.  A.  594-5, 
Rose's  Code,  §  1932.  "That  a  bill  of  exceptions  allowed  in 
any  cause  shall  be  deemed  sufficiently  authenticated  if  signed 
by  the  judge  of  the  court  in  which  the  cause  is  tried,  or  by 
the  presiding  judge  thereof  if  more  than  one  judge  sat  at 
the  trial  cause,  without  any  seal  of  the  court  or  judge  annexed 
thereto.  And  in  case  the  judge  before  whom  the  cause  has 
heretofore  been  or  may  hereafter  be  tried  is,  by  reason  of 
death,  sickness,  or  other  disability,  unable  to  hear  and  pass 
upon  the  motion  for  a  new  trial  and  allow  and  sign  said  bill 
of  exceptions,  then  the  judge  who  succeeds  such  trial  judge, 

6  Smith  v.  Jones,  181  Fed.  820,  104  C.  C.  A.  329;  Simkins,  "A  Federal 
Suit  at  Law,"  p.  124. 

'Newcomb  v.  Wood,  97  U.  S.  583,  24  L.  ed.  1086,  e.ud  other  cases  cited,  4 
F.  S.  A.  1st  col.  p.  575.  See  also  4  F.  S.  A.  549,  550. 

8  Aaron  v.  United  States,  155  Fed.  833.  84  C.  C.  A.  67;  Boatmen's  Bank  v. 
Trover  Co.  181  Fed.  804,  104  C.  C.  A.  314;  Owen  v.  Giles,  157  Fed.  825,  85 
C.  C.  A.  189. 

9Smale  v.  Mitchell,  143  U.  S.  108,  36  L.  ed.  92,  12  Sup.  Ct.  Rep.  353. 
See  also  Clark  v.  Sohier,  1  Woodb.  &  M.  368.  4  Fed.  Cas.  No.  2,835. 

a  Re-enacting  §  726,  R.  S.,  Rose's  Code,  §  923,  Foster's  Fed.  Prac.  (4th  ed.) 
p.  1306.  Comp.  St.  1901,  p.  584,  4  F.  S.  A.  549,  which  section  is  expressly  re- 
pealed by  §  297,  Judicial  Code.  In  general,  Sanborn  v.  Bay,  194  Fed.  37,  114 
C.  C.  A. "57. 


376        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  766 

or  any  other  judge  of  the  court  in  which  the  cause  was  tried, 
holding  such  court  thereafter,  if  the  evidence  in  such  cause 
has  been  or  is  taken  in  stenographic  notes,  or  if  the  said  judge 
is  satisfied  by  any  other  means  that  he  can  pass  upon  such 
motion  and  allow  a  true  bill  of  exceptions,  shall  pass  upon  said 
motion  and  allow  and  sign  such  bill  of  exceptions;  and  his 
ruling  upon  such  motion  and  allowance  and  signing  of  such 
bill  of  exceptions  shall  be  as  valid  as  if  such  ruling  and  al- 
lowance and  signing  of  such  bill  of  exceptions  had  been  made 
by  the  judge  before  whom  such  cause  was  tried ;  but  in  case 
said  judge  is  satisfied  that  owing  to  the  fact  that  he  did  not 
preside  at  the  trial,  or  for  any  other  cause,  that  he  cannot 
fairly  pass  upon  said  motion,  and  allow  and  sign  said  bill  of 
exceptions,  then  he  may  in  his  discretion  grant  a  new  trial  to 
the  party  moving  therefor." 

§  766.  Contents  of  Bill  of  Exceptions — Under  C.  C.  A. 
Rule  10,  Sup.  Ct.  Rule  4. 

C.  C.  A.  Rule  10.    All  circuits. 

"1.  Judges  of  the  district  courts  shall  not  allow  any  bill  of 
exceptions  which  shall  contain  the  charge  of  the  court  at 
large  to  the  jury  in  trials  at  common  law  upon  any  general 
exception  to  the  whole  of  such  charge.  But  the  party  except- 
ing shall  be  required  to  state  distinctly  the  several  matters 
of  law  in  such  charge  to  which  he  excepts ;  and  those  matters 
of  law,  and  those  only,  shall  be  inserted  in  the  bill  of  excep- 
tions and  allowed  by  the  court." 

In  the  third  circuit  the  following  is  added: 
"1.  Exceptions  to  the  charge  or  to  the  judge's  action  upon 
the  requests  for  instruction  shall  be  taken  immediately  on  the 
conclusion  of  the  charge  before  the  jury  retire,  shall  be 
specified  in  writing  or  dictated  to  the  stenographer,  and  shall 
be  specific  and  not  general." 

"2.  Exceptions  to  the  admission  or  rejection  of  evidence 
shall  be  specific  and  not  general,  and  the  bill  of  exceptions  to 
such  admission  or  rejection  shall  contain  only  so  much  of  the 
evidence  admitted  or  offered  and  rejected  as  is  necessary  for 
the  presentation  and  decision  of  the  questions  saved  for  re- 
view. Unless  there  be  saved  a  question  which  requires  the 
consideration  of  all  the  evidence,  a  bill  of  exceptions  contain- 
ing all  of  it  shall  not  be  allowed." 


§    766  VEKDICT NEW    TRIAL BILL   OF   EXCEPTIONS  377 

In  the  fourth  circuit  the  following  is  added : 
"2.  Only  so  much  of  the  evidence  as  may  be  necessary  to 
present  clearly  the  questions  of  law  involved  in  the  rulings 
to  which  exceptions  are  reserved,  and  such  evidence  as  is 
embraced  therein,  shall  be  set  forth  in  condensed  and  narra- 
tive form,  save  as  a  proper  understanding  of  the  questions 
presented  may  require  that  parts  of  it  be  set  forth  otherwise." 

In  the  sixth  circuit  the  following  is  the  rule : 
"1.  The  assignments  of  error  required  by  rule  11  shall  be 
filed  at  or  before  the  settling  of  the  bill  of  exceptions.  The 
evidence  in  the  bill  of  exceptions  shall  not  be  set  forth  in  full, 
but  shall  be  stated  in  simple  and  condensed  form,  all  parts 
not  essential  to  the  decision  of  some  one  of  the  questions 
presented  by  the  assignments  of  error  being  omitted,  and 
the  testimony  of  witnesses  being  stated  only  in  narrative 
form,  save  that,  if  either  party  desires  it  and  the  judge  so 
directs,  any  part  of  the  testimony  shall  be  reproduced  in  the 
exact  words  of  the  witness." 

"2.  No  general  exception  to  the  whole  or  any  charge  to  a 
jury  on  trials  at  law  shall  be  allowed  in  any  bill  of  exceptions. 
Exceptions  to  charge,  in  order  to  be  allowed  in  a  bill  of  ex- 
ceptions, must  be  taken  before  the  jury  retires  and  must  state 
distinctly  the  several  matters  of  law  to  which  exception  is 
taken.  In  cases  where  exception  is  taken  to  part  of  a  charge, 
and  such  exception  may  be  affected  by  other  parts  or  by  the 
charge  as  a  whole,  the  entire  charge  shall  be  included  in  the 
bill  of  exceptions." 

In  the  seventh  circuit  the  following  is  added : 

"2.  A  bill  of  exceptions  shall  contain  of  the  evidence  only 
such  a  statement  as  is  necessary  for  the  presentation  and  de- 
cision of  questions  saved  for  review,  and  unless  there  be  saved 
a  question  which  requires  the  consideration  of  all  the  evi- 
dence, a  bill  of  exceptions  containing  all  the  evidence  shall 
not  be  allowed." 

"3.  No  document  shall  be  copied  more  than  once  in  a  bill 
of  exceptions  or  in  a  transcript  of  the  record  of  the  case,  but 
instead  there  shall  be  inserted  a  reference  to  the  one  copy 
set  out.  A  motion  for  a  new  trial,  and  orders  and  entries 
relating  thereto,  shall  not  be  set  out  in  the  transcript  unless 
required  by  written  precipe,  of  which  a  copy  shall  also  be 
set  out." 

"4.   The  cost  of  unnecessary  matter  in  the  bill  of  exceptions 


378         MONTGOMERY'S  MANUAL  OF  FEDERAL,  PROCEDURE      §  766 

or  transcript  or  in  the  printed  record  shall  not  be  recovered 
of  the  appellee  or  defendant  in  error,  and  in  its  discretion  the 
court  will  in  case  of  dispute  appoint  a  referee  to  determine 
and  report  what  was  necessary  therein,  and  will  tax  the 
cost  of  the  reference  as  shall  be  just." 

Supreme  Court  Rule  4  as  to  bill  of  exceptions  consists  of  two 
paragraphs,  No.  1  of  which  is  the  same  in  substance  as  No.  1  of 
rule  10,  C.  C.  A.,  above  quoted ;  and  No.  2  of  which  is  identical 
with  2  of  the  fourth  circuit,  above  quoted. 


CHAPTER   27. 

JUDGMENTS  AND  EXECUTION— LAW  ACTIONS. 

Sec. 

780.  Judgments — In  General. 

781.  Executions — In  General. 

782.  Judgments  at  Law  Generally  Conform  to  State  Practice. 

783.  Interest    on    Judgments — Rate.    Allowance    of,    Levy    for, — Conforms    to 

State  Law. 

784.  Judgments — Kind  of  Money  Payable  in  Suits  for  Duties. 

785.  Record  of  Judgment  as  Required  by  State  Laws. 
7S6.  Indexes  of  Judgment  Records. 

787.  Lien  of  Judgment — Manner  and  Extent — Conform  to  State  Laws. 

788.  Lien  of  Judgment  or  Execution  Not  Devested  by  Creation  of  a  New  Dis- 

trict or  Division,  nor  by  the  Division  or  Transfer  of  Territory. 

789.  Amendments  of  Judgment. 

790.  Vacation  of  Judgment  Governed  by  Federal  Decisions. 

791.  Executions  in  Common-Law  Causes  Conform  to  State  Statutes  by  Rule 

of  Court. 

792.  Executions  Not  in  Issue  against  Revenue  Officers  for  Moneys  Paid  into 

Treasury  on  Probable  Cause. 

793.  Execution — Stay  Pending  Motion  for  New  Trial — Vacation  of  Judgment 

by  Granting  New  Trial. 

794.  Execution — Stay  for  One  Term  Where  State  Law  Allows  Such  Stay. 

795.  Executions  may  Run  and  be  Executed  in  Any  Part  of  a  State,  and  on 

Behalf  of  the  United  States  in  any  Other  State  or  Territory. 

796.  Execution — Imprisonment  for  Debt — Modifications  of  State  Law  Adopted. 

797.  Execution — Discharge    from    Arrest    or   Imprisonment    in    Civil    Actions 

Conform  to  State  Laws. 

798.  Execution — Imprisonment  for  Debt  in  Government  Suits — Discharge  of 

Poor  Debtor. 

799.  Same — Discharge  by  President  When  Secretary  of  Treasury  Not  Author- 

ized. 

800.  Execution — Sale  of  Real  Estate  or  Personal  Property — Place  of  Sale. 

801.  Execution — Sale  of  Real  Estate — Publication  of  Notice. 

802.  Execution — Sale  of  Real  Estate — Marshal's  Successor  to  Continue  Pro- 

ceedings. 

803.  Execution — Sale  of  Real  Estate  in  Government  Suits — Purchase  by  Gov- 

ernment. 

804.  Execution — Sale  of  Personal  Property — Appraisal  under  §  993,  R.  S.,  in 

Same  Manner  as  Required  by  State  Law. 

379 


380         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  781 

§  780.  Judgments — In  General.  Judgments  in  law  actions 
may  conform  by  general  rule  to  state  laws  under  the  "conformity 
act,"  §  914,  K.  S.  Judgments  by  default  are  authorized  by  §  918, 
R.  S.,  and  defaults  in  suits  by  government  on  bonds,  §  961,  R.  S.,1 
and  amendments  by  §  954,  R.  S.2 

The  allowance  of  interest  8  as  provided  by  state  laws  is  permitted 
by  §  966,  R.  S..,  interest  or  bonds  for  duties  is  provided  by  § 
963,  R.  S.,  and  interest  on  customs  debentures  by  §  965,  R.  S. 

The  kind  of  money  payable  in  suits  for  duties  is  provided  by 
§  962,  R.  S.4 

The  recording,  docketing,  and  indexing  of  judgments  conform 
under  §  1,  act  of  August  1,  1888,  ch.  729.5 

The  clerks  of  the  United  States  courts  are  required  to  keep 
indexes  of  such  judgments  by  §  2  of  the  act  of  Aug.  1,  1888,  ch. 
729.6 

The  manner,  effect,  and  extent  of  the  lien  of  judgments  con- 
form to  state  laws  under  §  1  of  the  act  of  Aug.  1,  1888,  ch.  729, 
and  when  they  shall  cease  to  be  liens  by  §  967,  R.  S.7  The  lien 
of  a  judgment  on  execution  by  change  of  boundaries  is  preserved 
by  §  60,  Judicial  Code.8 

Amendments  for  defect  in  form  are  permitted  under  §  954, 
R.  S.,  regardless  of  state  statute.9 

Judgments  may  be  vacated  within  the  term,  but  not  after  term, 
except  by  an  independent  suit  in  equity  for  equitable  cause.10 

§  781.  Executions — In  General.  Executions  on  judgments 
in  law  actions  may  conform  by  general  rule  to  state  statutes  under 
§  916,  R.  S.11 

Executions  are  not  to  issue  against  revenue  officers  for  moneys 
paid  into  the  Treasury  on  probable  cause  under  §  989,  R.  S.12 

Executions  may  be  stayed  pending  motion  for  new  trial  under 
§  987,  R.  S.18  And  where  state  allows  stay  for  one  term  or  more, 

1  §   782,   infra.  Judgments   by   default,   see   §   672,   supra. 

2  §   789,   infra.          »  §  783,  infra.  *  §  784,  infra.  5  §  785,  infra. 
6§  786,  infra.           ?§  787,  infra.           8§  788,  infra.  »§  789,  infra. 
10  §  790,  infra.          "  §  791,  infra.          «§  792,  infra.          13  §  793,  infra. 


§    782  JUDGMENTS  AND   EXECUTION LAW    ACTIONS  381 

there  may  be  stay  for  one  term  in  the  Federal  court  under  §  988, 
R.  S."    ' 

Executions  may  run  and  be  executed  in  any  part  of  a  state 
under  §  985,  R.  S.,  and  on  judgment  in  favor  of  the  United  States 
may  run  in  every  state  and  territory  under  §  986,  R.  S.16 
'  State  laws  regarding  abolishment  of  imprisonment  for  debt 
are  effective  under  §  990,  R.  S.,16  and  for  the  discharge  of  a 
person  from  arrest  or  imprisonment  in  civil  cases  by  §  991,  R.  S.17 

A  poor  debtor  may  be  discharged  from  imprisonment  for  debt 
in  government  suits  by  the  Secretary  of  the  Treasury  under  § 
3471,  R.  S.,18  or  by  the  President  under  §  3472,  R.  S.,19  when  the 
Secretary  is  not  authorized. 

The  place  of  sale  of  real  or  personal  property  is  governed  by 
§§  1  and  2,  act  March  3,  1893,  chapter  225,20  and  the  publication 
of  notice  of  sale  of  real  estate  by  §  3  of  the  same  act.21  Proceed- 
ings for  sale  of  real  estate  are  not  interrupted  by  a  vacancy  in 
the  marshal's  office  but  are  continued  by  his  successor  under  § 
994,  R.  S.22 

The  government  may  be  a  purchaser  in  execution  sales  of  real 
estate  in  government  suits  under  §  3470,  R.  S.23 

Appraisal  of  personal  property  sold  on  execution  may  conform 
Tinder  §  993,  R.  S.,  to  state  laws.24 

§  782.  Judgments  at  Law  Generally  Conform  to  State 
Practice. 

§  914,  R.  8.,  Comp.  Stat.  1901,  p.  684,  4  F.  8.  A.  563, 
Rose's  Code,  §  900.  "The  practice,  .  .  .  forms,  and 
modes  of  proceeding  in  civil  causes  .  .  .  shall  conform, 
as  near  as  may  be,  to  the  practice,  .  .  .  forms,  and  modes 
of  proceeding  existing  at  the  time  in  like  causes  in  the  courts 
of  record  of  the  state  within  which  such  .  .  .  district 
courts  are  held,  any  rule  of  court  to  the  contrary  notwith- 
standing." 

Judgments  by  default  generally  conform  to  state  statutes  though 
the  district  courts  may  provide  for  same  by  rule  under  §  918,  R. 
S.  This  subject  is  treated  in  §  672,  supra. 

"§  794,  infra.  «  §  705,  infra.  16  §  796,  infra.  "§  797,  infra. 
W  §  708,  infra.  19  §  799,  infra.  20  §  SCO,  infra.  21  §  801,  infra. 
22  §  802,  infra.  23  §  803,  infra.  24  §  804,infru. 


MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  784 

§  783.  Interest  on  Judgments — Rate,  Allowance  of,  Levy 
for, — Conforms  to  State  Law. 

§  966,  R.  S.,  Comp.  Stat.  1901,  p.  700,  4  F.  8.  A.  2.  "In- 
terest shall  he  allowed  on  all  judgments  in  civil  causes,  re- 
covered in  a  circuit  or  district  court,  and  may  be  levied  by  the 
marshal  under  process  of  execution  issued  thereon,  in  all 
cases  where,  by  the  law  of  the  state  in  which  such  court  is 
held,  interest  may  be  levied  under  process  of  execution  on 
judgments  recovered  in  the  courts  of  such  state ;  and  it  shall 
be  calculated  from  the  date  of  the  judgment,  at  such  rate  as  is 
allowed  by  law  on  judgments  recovered  in  the  courts  of  such 
state." 

Interest  on  bonds  for  duties. 

§  963,  R.  S.,  Comp.  Stat.  1901,  p.  700,  2  F.  S.  A.  726, 
Rose's  Code,  §  1397.  "Upon  all  bonds,  on  which  suits  are 
brought  for  the  recovery  of  duties,  interest  shall  be  allowed, 
at  the  rate  of  six  per  centum  a  year,  from  the  time  when 
said  bonds  became  due." 

Interest  on  customs  debentures. 

§  965,  R.  8.,  Comp.  Stat.  1901,  p.  700,  2  F.  S.  A.  726, 
Rose's  Code,  §  1398.  "In  suits  upon  debentures  issued  by 
the  collectors  of  the  customs  under  any  act  for  the  collection 
of  duties,  interest  shall  be  allowed,  at  the  rate  of  six  per 
centum  per  annum,  from  the  time  when  such  debenture  be- 
came due  and  payable." 

§  784.  Judgments — Kind  of  Money  Payable  in  Suits  for 
Duties. 

§  962,  R.  S.,  Comp.  Stat.  1901,  p.  699,  2  F.  S.  A.  726, 
Rose's  Code,  §  1396.  "In  all  suits  by  the  United  States  for 
the  recovery  of  duties  upon  imports,  or  of  penalties  for  the 
nonpayment  thereof,  the  judgment  shall  recite  that  it  is  ren- 
dered for  duties,  and  snch  judgment,  with  interest  thereon, 
and  costs,  shall  be  payable  in  the  coin  by  law  receivable  for 
duties ;  and  the  execution  issued  thereon  shall  set  forth 
that  the  recovery  is  for  duties,  and  shall  require  the  marshal 
to  satisfy  the  same  in  the  coin  by  law  receivable  for  duties ; 
and  in  case  of  levy  upon  and  sale  of  the  property  of  the 
judgment  debtor,  the  marshal  shall  refuse  payment  from  any 
purchaser  at  such  sale  in  any  other  money  than  that  specified 
in  the  execution." 


§    787  JUDGMENTS  AND   EXECUTION LAW   ACTIONS  383 

§  785.  Record  of  Judgment  as  Required  by  State  Laws. 

PL  §  1,  Act  Aug  1,  1888,  ch,  729,  25  Stat.  at  L.  357, 
Comp.  Stat.  1901,  p.  701,  4  F.  S.  A.  5,  Rose's  Code,  §1861. 
".  .  .  That  whenever  the  laws  of  any  state  require  a 
judgment  or  decree  of  a  state  court  to  be  registered,  recorded, 
docketed,  indexed,  or  any  other  thing  to  be  done,  in  a  par- 
ticular manner,  or  in  a  certain  office  or  county,  or  parish 
in  the  state  of  Louisiana  before  a  lien  shall  attach,  this  act 
shall  be  applicable  therein  whenever  and  only  whenever  the 
laws  of  such  state  shall  authorize  the  judgments  and  decrees 
of  the  United  States  courts  to  be  registered,  recorded,  docket- 
ed, indexed,  or  otherwise  conformed  to  the  rules  and  re- 
quirements relating  to  the  judgments  and  decrees  of  the 
courts  of  the  state." 

§  3  Act  August  1,  1888,  ch.  729,  4  F.  S.  A.  5,  Rose's  Code, 
§  1863,  obviating  the  necessity  of  filing  a  transcript  of  a  judgment 
in  the  state  office  of  the  county  where  the  clerk  of  the  United  States 
has  a  permanent  office  is  repealed  by  Act  August  17,  1912,  ch. 
300,  37  Stat.  at  L.  311. 

§  786.  Indexes  of  Judgment  Records. 

§  2,  Act  Aug.  1,  1888,  ch.  729,  25  Stat.  at  L.  357,  Comp. 
Stat.  1901,  p.  701,  4  F.  S.  A.  5.  "That  the  clerks  of  the 
several  courts  of  the  United  States  shall  prepare  and  keep  in 
their  respective  offices  complete  and  convenient  indices  and 
cross  indices  of  the  judgment  records  of  said  courts,  and  such 
indices  and  records  shall  at  all  times  be  open  to  the  inspec- 
tion and  examination  of  the  public." 

§  787.  Lien  of  Judgment — Manner  and  Extent — Conform 
to  State  Laws. 

PL  §  1,  Act  Aug.  1,  1888,  ch.  729,  25  Stat.  at  L.  357, 
Comp.  Stat.  1901,  p.  701,  4  F.  S.  A.  5.  "That  judgments 
and  decrees  rendered  in  a  circuit  or  district  court  of  the  Unit- 
ed States  within  any  state  shall  be  liens  on  property  through- 
out such  state,  in  the  same  manner,  and  to  the  same  extent, 
and  under  the  same  conditions  only,  as  if  such  judgments 
and  decrees  had  been  rendered  by  a  court  of  general  juris- 
diction of  such  state':  .  .  ." 

§  .967,  E.  8.,  Comp.  Stat.  1901,  p.  700,  4  F.  S.  A.  4, 
Rose's  Code,  §  1862.  "Judgments  and  decrees  rendered  in 


384:         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  790 

a  circuit  or  district  court,  within  any  state,  shall  cease  to  be 
liens  on  real  estate  or  chattels  real,  in  the  same  manner  and 
at  like  periods  as  judgments  and  decrees  of  the  courts  of  such 
state  cease,  by  law,  to  be  liens  thereon." 

§  788.  Lien  of  Judgment  or  Execution  Not  Devested  by 
Creation  of  a  New  District  or  Division,  nor  by  the  Division 
or  Transfer  of  Territory.  By  §  60,  Judicial  Code,  quoted  in 
our  §  170,  supra,  and  in  the  Appendix,  it  is  provided  that  the 
lien  of  a  judgment  or  execution,  etc.,  shall  not  be  devested  by  a 
change  of  boundaries  of  any  territory,  and  that  a  certified  copy 
thereof  may  be  filed  in  the  proper  court  of  the  division  or  district 
in  which  the  property  is  located  after  such  transfer,  and  have  the 
same  effect  as  an  original. 

§  789.  Amendments  of  Judgment. 

§  954,  R-  S.t  Comp.  Stat.  1901,  p.  696,  4  F.  8.  A.  596, 
Rose's  Code,  §  813.  "K"o  t;.K^'lf  '.  judgment  ...  in 
civil  causes,  in  any  court  of  the  United  States,  shall  be  abated, 
arrested,  quashed,  or  reversed  for  any  defect  or  want  t>f 
form,  .  .  .  and  such  court  shall  amend  every  such  defect 
and  want  of  form  .  .  .  upon  such  conditions  as  it  shall, 
in  its  discretion  and  by  its  rules,  prescribe." 

This  section  does  not  permit  amendments  in  judgments  except 
as  to  defects  or  want  of  form.25 

The  judgment  may  be  amended,  modified,  or  set  aside  during 
the  term  of  entry.86 

§  790.  Vacation  of  Judgment  Governed  by  Federal  De- 
cisions. The  inherent  power  to  vacate  a  judgment  during  the  term 
in  which  it  is  entered  is  settled  beyond  controversy.27  But  a 
judgment  cannot  be  changed  or  substantially  modified  after  the 
term  has  expired  regardless  of  state  law  or  practice.28  There  may, 
however,  be  an  independent  equity  suit  to  relieve  of  a  judgment  at 
law  where  there  is  fraud  or  other  equitable  grounds.29 

25  Albers  v.  Whitney.  1  Story.  310.  1  Fed.  Cas.  Xo.  137. 

^3  Southern  P.  R.  Co.  v.  Kelly,  187  Fed.  939,  109  C.  C.  A.  659. 

27  Ibid. 

?8  Kronson  v.  Schulten.  304  U.  S.  410.  26  L.  ed.  797. 

29  Johnson  v.  Waters,  111  U.  S.  667,  28  L.  ed.  556.  4  Sup.  Ct.  Rep.  619. 


§    792  JUDGMENTS   AND   EXECUTION- — LAW   ACTIONS  385 

§  791.  Executions  in  Common-Law  Causes  Conform  to 
State  Statutes  by  Rule  of  Court. 

§  916,  R.  S.,  Comp.  StaJt.  1901,  p.  684,  2  F.  8.  A.  44, 
also  4  F.  S.  A.  580,  Rose's  Code,  §  925.  "The  party  re- 
covering a  judgment  in  any  common-law  cause  in  any  cir- 
cuit or  district  court  shall  be  entitled  to  similar  remedies 
upon  the  same,  by  execution  or  otherwise,  to  reach  the  prop- 
erty of  the  judgment  debtor,  as  are  now  provided  in  like 
causes  by  the  laws  of  the  state  in  which  such  court  is  held, 
or  by  any  such  laws  hereafter  enacted  which  may  be  adopted 
by  general  rules  of  such  circuit  or  district  court;  and  such 
courts  may,  from  time  to  time,  by  general  rules,  adopt  such 
state  laws  as  may  hereafter  be  in  force  in  such  state  in  re- 
lation to  remedies  upon  judgments,  as  aforesaid,  by  execu- 
tion or  otherwise." 

"When  parties  seek  attachments,  garnishments,  executions,  pro- 
visional remedies  of  various  kinds,  in  the  courts  of  the  United 
States,  it  is  not  the  habit  of  counsel  or  of  the  court  to  search  the 
statutes  of  a  quarter  of  a  century  ago,  and  to  conform  the  pro- 
ceedings of  the  Federal  courts  to  those  then  in  force  in  the  courts 
of  the  several  states,  but  they  adopt  and  use  remedies  prescribed 
by  their  state  statutes  in  force  at  the  time  they  act.  A  general 
and  uniform  practice  becomes  a  general  and  established  rule  of 
the  court,  and  in  the  absence  of  convincing  evidence  to  the  con- 
trary the  presumption  in  the  appellate  court  is  that  the  remedial 
statutes  in  force  in  the  states  at  the  time  when  proceedings  under 
them  were  taken  in  the  Federal  courts  had  been  adopted  by  those 
courts,  either  by  written  rule  or  by  general  practice."  30 

§  792.  Executions  Not  to  Issue  against  Revenue  Officers 
for  Moneys  Paid  into  Treasury  on  Probable  Cause. 

§  989,  R.  8.,  Comp.  Stat.  1901,  p.  708,  3  F.  S.  A.  40, 
Rose's  Code,  §  1868.  "When  a  recovery  is  had  in  any  suit  or 
proceeding  against  a  collector  or  other  officer  of  the  revenue 
for  any  act  done  by  him,  or  for  the  recovery  of  any  money 
exacted  by  or  paid  into  the  Treasury,  in  the  performance  of 
his  official  duty,  and  the  court  certifies  that  there  was  prob- 
able cause  for  the  act  done  by  the  collector  or  other  officer, 

30  Logan  v.  Goodwin,  104  Fed.  400,  43  C.  C.  A.  658. 
Montg.— 25. 


386         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  795 

or  that  he  acted  under  the  directions  of  the  Secretary  of  the 
Treasury,  or  other  proper  officer  of  the  government,  no  ex- 
ecution shall  issue  against  such  collector  or  other  officer,  but 
the  amount  so  recovered  shall,  upon  final  judgment,  be  pro- 
vided for  and  paid  out  of  the  proper  appropriation  from  the 
Treasury." 

§  793.  Execution — Stay  Pending  Motion  for  New  Trial — 
Vacation  of  Judgment  by  Granting  New  Trial. 

§  987,  R.  S.f  Comp.  Stat.  1901,  p.  708,  3  F.  8.  A.  45, 
Rose's  Code,  §§  924,  1866.  "When  a  circuit  court  enters 
judgment  in  a  civil  action,  either  upon  a  verdict  or  on  a 
finding  of  the  court  upon  the  facts,  in  cases  where  such  find- 
ing is  allowed,  execution  may,  on  motion  of  either  party, 
at  the  discretion  of  the  court,  and  on  such  conditions  for  the 
security  of  the  adverse  party  as  it  may  judge  proper,  be 
stayed  forty-two  days  from  the  time  of  entering  judgment, 
to  give  time  to  file  in  the  clerk's  office  of  said  court  a  petition 
for  a  new  trial.  If  such  petition  is  filed  within  said  term 
of  forty-two  days,  with  a  certificate  thereon  from  any  judge 
of  such  court  that  he  allows  it  to  be  filed,  which  certificate  he 
may  make  or  refuse  at  his  discretion,  execution  shall,  of 
course,  be  further  stayed  to  the  next  session  of  said  court. 
If  a  new  trial  be  granted,  the  former  judgment  shall  be  there- 
by rendered  void." 

§  794.  Execution— Stay  for  One  Term  Where  State  Law 
Allows  Such  Stays. 

§  988,  R.  8.,  Comp.  Stat.  1901,  p.  708,  3  F.  8.  A.  46, 
Rose's  Code,  §  1867.  "  (When  judgment  debtor  entitled 
to  a  continuance  of  one  term.)  In  any  state  where  judg- 
ments are  liens  upon  the  property  of  the  defendant,  and 
where,  by  the  laws  of  such  state,  defendants  are  entitled, 
in  the  courts  thereof,  to  a  stay  of  execution  for  one  term  or 
more,  defendants  in  actions  in  courts  of  the  United  States, 
held  therein,  shall  be  entitled  to  a  stay  of  execution  for  one 
term." 

§  795.  Executions  may  Run  and  be  Executed  in  any  Part 
of  a  State,  and  on  Behalf  of  the  United  States  in  Any  Other 
State  or  Territory. 

§  985,  R.  8.,  Comp.  Stat.  1901,  p.  707,  3  F.  S.  A.  44, 
Rose's  Code,  §  1865.  "All  writs  of  execution  upon  judg- 


§    797  JUDGMENTS   AND   EXECUTION LAW    ACTIONS  387 

ments  or  decrees  obtained  in  a  circuit  or  district  court,  in 
any  state  which  is  divided  into  two  or  more  districts,  may 
run  arid  be  executed  in  any  part  of  such  state;  but  shall  be 
issued  from,  and  made  returnable  to,  the  court  wherein  the 
judgment  was  obtained." 

§  986,  R.  8.,  Comp.  Stat.  1901,  p.  101,  3  F.  8.  A.  45, 
Rose's  Code,  §  1865.  "All  writs  of  execution  upon  judg- 
ments obtained  for  the  use  of  the  United  States,  in  any 
court  thereof,  in  one  state,  may  run  and  be  executed  in  any 
other  state,  or  in  any  territory,  but  shall  be  issued  from,  and 
made  returnable  to,  the  court  wherein  the  judgment  was  ob- 
tained." 

§  796.  Execution — Imprisonment  for  Debt — Modifications 
of  State  Law  Adopted. 

§  990,  R.  8.,  Comp.  Stat.  1901,  p.  709,  3  F.  8.  A.  48, 
Rose's  Code,  §  1558.  "No  person  shall  be  imprisoned  for 
debt  in  any  state,  on  process  issuing  from  a  court  of  the 
United  States,  where,  by  the  laws  of  such  state,  imprison- 
ment for  debt  has  been  or  shall  be  abolished.  And  all  mod- 
ifications, conditions,  and  restrictions,  upon  imprisonment 
for  debt,  provided  by  the  laws  of  any  state,  shall  be  appli- 
cable to  the  process  issuing  from  the  courts  of  the  United 
States  to  be  executed  therein ;  and  the  same  course  of  pro- 
ceedings shall  be  adopted  therein  as  may  be  adopted  in  the 
courts  of  such  state." 

§  797.  Execution — Discharge  from  Arrest  or  Imprison- 
ment in  Civil  Actions  Conform  to  State  Laws. 

§  991,  R.  8.,  Comp.  Stat.  1901,  p.  709,  3  F.  8.  A.  50, 
Rose's  Code,  §  1559.  "When  any  person  is  arrested  or  im- 
prisoned in  any  state,  on  mesne  process  or  execution  issued 
from  any  court  of  the  United  States,  in  any  civil  action,  he 
shall  be  entitled  to  discharge  from  such  arrest  or  imprison- 
ment in  the  same  manner  as  if  he  were  so  arrested  and  im- 
prisoned on  like  process  from  the  courts  of  such  state.  The 
same  oath  may  be  taken,  and  the  same  notice  thereof  shall  be 
required,  as  may  be  provided  by  the  laws  of  such  state,  and 
the  same  course  of  proceedings  shall  be  adopted  as  may  be- 
adopted  in  the  courts  thereof.  But  all  such  proceedings 
shall  be  had  before  one  of  the  commissioners  of  the  circuit 
court  for  the  district  where  the  defendant  is  so  held/' 


388         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  799 

§  798.  Execution — Imprisonment  for  Debt  in  Government 
Suits — Discharge  of  Poor  Debtor  under  §  3471,  R.  S. 

§  3471,  K.  S.,  Comp.  Stat.  1901,  p.  2318,  3  F.  S.  A.  52. 
"Any  person  imprisoned  upon  execution  issuing  from  any 
court  of  the  United  States,  for  a  debt  due  to  the  United 
States,  which  he  is  unable  to  pay,  may,  at  any  time  after 
commitment,  make  application,  in  writing,  to  the  Secretary 
of  the  Treasury,  stating  the  circumstances  of  his  case  and 
his  inability  to  discharge  the  debt ;  and  thereupon  the  Sec- 
retary may  make,  or  require  to  be  made,  an  examination 
and  inquiry  into  the  circumstances  of  the  debtor,  by  the 
oath  of  the  debtor,  which  the  Secretary,  or  any  other  per- 
son by  him  specially  appointed,  is  authorized  to  administer, 
or  otherwise,  as  the  Secretary  shall  deem  necessary  and  ex- 
pedient, to  ascertain  the  truth ;  and  upon  proof  made  to 
his  satisfaction,  that  the  debtor  is  unable  to  pay  the  debt 
for  which  he  is  imprisoned,  and  that  he  has  not  concealed  or 
made  any  conveyance  of  his  estate,  in  trust,  for  himself,  or 
with  an  intent  to  defraud  the  United  States,  or  to  deprive 
them  of  their  legal  priority,  the  Secretary  is  authorized  to 
receive  from  such  debtor  any  deed,  assignment,  or  convey- 
ance of  his  real  or  personal  estate,  or  any  collateral  security, 
to  the  use  of  the  United  States.  Upon  a  compliance  by  the 
debtor  with  such  terms  and  conditions  as  the  Secretary  may 
judge  reasonable  and  proper,  the  Secretary  must  issue  his 
order,  under  his  hand,  to  the  keeper  of  the  prison,  directing 
him  to  discharge  the  debtor  from  his  imprisonment  under 
such  execution.  The  debtor  shall  not  be  liable  to  be  im- 
prisoned again  for  the  debt;  but  the  judgment  shall  remain 
in  force,  and  may  be  satisfied  out  of  any  estate  which  may 
then,  or  at  any  time  afterward,  belong  to  the  debtor.  The 
benefit  of  this  section  shall  not  be  extended  to  any  person 
imprisoned  for  any  fine,  forfeiture,  or  penalty,  incurred  by 
a  breach  of  any  law  of  the  United  States,  or  for  moneys  had 
and  received  by  any  officer,  agent,  or  other  person,  for  their 
use;  nor  shall  its  provisions  extend  to  any  claim  arising 
under  the  postal  laws." 

§  799.  Same — Discharge   by   President  When   Secretary 
of  Treasury  Not  Authorized. 

§  3472,  R.  S.f  Comp.  Stat.  1901,  p.  2319,  3  F.  S.  A.  53. 
"Whenever  any  person  is  imprisoned  upon  execution  for  a 
debt  due  to  the  United  States,  which  he  is  unable  to  pay,  and 


§    801  JUDGMENTS    AND    EXECUTION LAW    ACTIONS  389 

his  case  is  such  as  does  not  authorize  his  discharge  by  the 
Secretary  of  the  Treasury,  under  the  preceding  section,  he 
may  make  application  to  the  President,,  who,  upon  proof 
made  to  his  satisfaction  that  the  debtor  is  unable  to  pay 
the  debt,  and  upon  a  compliance  by  the  debtor  with  such 
terms  and  conditions  as  the  President  shall  deem  proper,  may 
order  the  discharge  of  such  debtor  from  his  imprisonment. 
The  debtor  shall  not  be  liable  to  be  imprisoned  again  for  the 
same  debt;  but  the  judgment  shall  remain  in  force,  and 
may  be  satisfied  out  of  any  estate  which  may  then,  or  at  any 
time  afterward,  belong  to  the  debtor." 

§  800.  Execution— Sale  of  Real  Estate  or  Personal  Prop- 
erty— Place  of  Sale. 

§  1,  Act  March  3,  1893,  ch.  225,  27  Stat.  at  L.  751, 
Comp.  St.  1901,  p.  710,  3  F.  8.  A.  54.  "That  all  real  es- 
tate or  any  interest  in  land  sold  under  any  order  or  decree 
of  any  United  States  court  shall  be  sold  at  public  sale  at 
the  courthouse  of  the  county,  parish,  or  city  in  which  the 
property,  or  the  greater  part  thereof,  is  located,  or  upon 
the  premises  as  the  court  rendering  such  order  or  decree  of 
sale  may  direct." 

Personal  property  sold  same  as  real  estate  unless  otherwise  ordered. 
§  2,  Act  March  3,  1893,  ch.  225,  27  Stat.  at  L.  751, 
Comp.  St.  1901,  p.  710,  3  F.  S.  A.  54.  "That  all  personal 
property  sold  under  any  order  or  decree  of  any  court  of  the 
United  States  shall  be  sold  as  provided  in  the  first  section 
of  this  act,  unless,  in  the  opinion  of  the  court  rendering 
such  order  or  decree,  it  would  be  best  to  sell  it  in  some 
other  manner." 

§  801.  Execution — Sale  of   Real  Estate — Publication  of 
Notice. 

§  3,  Act  March  3,  1893,  ch.  225,  27  Stat.  at  L.  751, 
Comp.  St.  1901,  p.  710,  3  F.  S.  A.  54.  "That  hereafter  no 
sale  of  real  estate  under  any  order,  judgment,  or  decree  of 
any  United  States  court  shall  be  had  without  previous  pub- 
lication of  notice  of  such  proposed  sale  being  ordered  and 
had  once  a  week  for  at  least  four  weeks  prior  to  such  sale 
in  at  least  one  newspaper  printed,  regularly  issued,  and 
having  a  general  circulation  in  the  county  and  state  where 
the  real  estate  proposed  to  be  sold  is  situated,  if  such  there 


390         MONTGOMEBY'S  MANUAL  OF  FEDERAL  PROCEDI:KE     §  803 

be.  If  said  property  shall  be  situated  in  more  than  one 
county  or  state,  such  notice  shall  be  published  in  such  of 
the  counties  where  said  property  is  situated,  as  the  court  may 
direct.  Said  notice  shall,  among  other  things,  describe  the 
real  estate  to  be  sold.  The  court  may,  in  its  discretion,  di- 
rect the  publication  of  the  notice  of  sale  herein  provided  for 
to  be  made  in  such  other  papers  as  may  seem  proper." 

§  802.  Execution — Sale  of  Real  Estate — Marshal's   Suc- 
cessor to  Continue  Proceedings. 

§  994,  R*  S.,  Comp.  Stat.  1901,  p.  Ill,  3  F.  S.  A.  52, 
Rose's  Code,  §  1872.  "When  a  marshal  dies,  or  is  removed 
from  office,  or  the  term  of  his  commission  expires,  after  he 
has  taken  in  execution,  under  process  from  a  court  of  the 
United  States,  any  lands,  tenements,  or  hereditaments,  and 
before  sale  or  other  final  disposition  thereof,  the  like  pro- 
cess shall  issue  to  the  succeeding  marshal,  and  the  same  pro- 
ceeding shall  be  had  as  if  such  marshal  had  not  died  or  been 
removed,  or  the  term  of  his  commission  had  not  expired.  And 
when  a  marshal  dies  or  is  removed  from  office,  or  the  term 
of  his  commission  expires,  after  he  has  sold  any  lands,  ten- 
ements, or  hereditaments,  under  process  from  the  court  of 
the  United  States,  and  before  a  deed  for  the  same  is  ex- 
ecuted by  him  to  the  purchaser,  such  court  may,  on  applica- 
tion by  the  purchaser,  or  by  the  plaintiff  at  whose  suit  the 
sale  was  made,  setting  forth  the  case  and  the  reason  why 
the  title  was  not  perfected  by  said  marshal,  order  the  mar- 
shal for  the  time  being  to  perfect  the  title  and  execute  a  deed 
to  the  purchaser,  upon  his  paying  the  purchase  money  and 
costs  remaining  unpaid."  i. 

§  803.  Execution — Sale  of  Real  Estate  in   Government 
Suits— Purchase  by  Government. 

§  3470,  R.  8.,  Comp.  St.  1901,  p.  2318,  3  F.  S.  A.  52. 
"At  every  sale,  on  execution,  at  the  suit  of  the  United  States, 
of  lands  or  tenements  of  a  debtor,  the  United  States  may, 
by  such  agent  as  the  Solicitor  of  the  Treasury  shall  appoint, 
become  the  purchaser  thereof ;  but  in  no  case  shall  the  agent 
bid  in  behalf  of  the  United  States  a  greater  amount  than 
that  of  the  judgments  for  which  such  estate  may  be  ex- 
posed to  sale,  and  the  costs.  Whenever  such  purchase  is 
made,  the  marshal  of  the  district  in  which  the  sale  is  held 
shall  make  all  needful  conveyances,  assignments,  or  trans- 
fers to  the  United  States." 


§    804  JUDGMENTS  AND   EXECUTION LAW   ACTIONS  391 

§  804.  Execution — Sale  of  Personal  Property — -Appraisal 
under  §  993,  R.  S.,  in  Same  Manner  as  Required  by  State 
Law. 

§  993,  R.  8.,  Comp.  Slat.  1901,  p.  710,  3  F.  8.  A.  51, 
Ease's  Code,  §§  737,  1873.  "(Goods  taken  on  a  fieri  facias, 
how  appraised.)  When  it  is  required  by  the  laws  of  any 
state  that  goods  taken  in  execution  on  a  writ  of  fieri  facias 
shall  be  appraised,  before  the  sale  thereof,  the  appraisers 
appointed  under  the  authority  of  the  state  may  appraise 
goods  taken  in  execution  on  a  fieri  facias  issued  out  of  any 
court  of  the  United  States,  in  the  same  manner  as  if  such 
writ  had  issued  out  of  a  court  of  such  state.  And  the  mar- 
shal, in  whose  custody  such  goods  may  be,  shall  summon  the 
appraisers,  in  the  same  manner  as  the  sheriff  is,  by  the  laws 
of  such  state,  required  to  summon  them;  and  if  the  apprais- 
ers, being  duly  summoned,  fail  to  attend  and  perform  the 
duties  required  of  them,  the  marshal  may  proceed  to  sell 
such  goods  without  an  appraisement.  When  such  appraisers 
attend  they  shall  be  entitled  to  the  like  fees  as  in  cases  of 
appraisements  under  the  laws  of  the  state." 


CHAPTER    28. 

APPELLATE  PROCEDURE— LAW  ACTIONS. 

Sec. 

820.  In  General. 

821.  Parties  to  Writ  of  Error. 

822.  Time  for  Writ  of  Error — District  Courts  to  Supreme  Court. 

823.  Time  for  Writs  of  Error  to  Circuit  Court  of  Appeals. 

824.  Time  for  Writs  of  Error  from  Circuit  Court  of  Appeals  to  Supreme 

Court. 

825.  Time  to  Sue  Out  Writ  of  Error  to  State  Court. 

826.  Procedure  on  Error  to  Circuit  Court  of  Appeals  Same  as  to  Supreme 

Court. 

827.  Allowance  of  Writ  of  Error. 

828.  Amendment  of  Writ  of  Error. 

829.  Writ  of  Error  from  Supreme  Court — By  Whom  Issued. 

830.  Assignment  of  Errors. 

831.  Citation. 

832.  Bond  on  Error. 

833.  Xo  Bond  Required  of  United  States. 

834.  Supersedeas. 

835.  Proceedings  in  Forma  Pauperis. 

836.  Record  on  Error. 

837.  Reduction.  Preparation,  and  Filing  of  Record  on  Error. 

838.  Time  for  Return  of  Writ  of  Error. 

839.  Summary  of  Proceedings  on  Writ  of  Error. 

840.  Review  by  Certiorari  and  Certification  of  Questions  of  Law. 

841.  Procedure  on  Error  to  Territories. 

842.  Certification  to  Supreme  Court  from  the  Ninth  Circuit  in  Alaska  Cases. 

843.  Procedure  after  Transcript  Reaches  Appellate  Court. 

844.  Xo  Reversal  for  Error  in  Fact. 

845.  Damages  and  Costs  on  Error. 

§  820.  In  General.  A  judgment  at  law  is  carried  up  for  re- 
view, not  by  appeal,  but  by  writ  of  error.  The  term  "appeal" 
is  reserved  exclusively  for  the  designation  of  proceedings  for  the 
review  of  equity  cases;  this  phraseology  is  closely  adhered  to  by 
the  Federal  courts,  and  an  error  of  law  cannot  be  considered 

392 


§  820        APPELLATE  PROCEDURE LAW  ACTIONS          303 

under  an  appeal, — nor  can  an  equity  suit  be  reviewed  bj  writ  of 
error.1 

The  principal  distinction  between  the  two  methods  of  review 
lies  in  scope  of  the  examination  of  the  appellate  court.  Only 
questions  of  law  can  be  considered  upon  a  writ  of  error,  while  an 
appeal  carries  up  the  entire  cause,  both  as  to  law  and  fact,  for 
reconsideration. 

Writs  of  error,  together  with  all  other  preliminary  proceedings 
upon  review,  either  in  law  or  equity,  are  regulated,  not  by  state 
laws,  for  the  conformity  act  has  no  application  to  them,  but  by 
Federal  statutes  or  rules,  or,  in  their  absence,  by  the  common  law 
in  case  of  a  review  of  a  law  question  and  by  the  English  chancery 
practice  in  reviews  of  equity  cases. 

In  fact  the  statutes  governing  procedure  upon  writs  of  error 
are,  with  a  very  few  exceptions,  identical  with  those  governing 
appeals,  and  the  procedure  discussed  in  chapter  41,  infra,  is  ap- 
plicable to  and,  as  a  rule,  governs,  writs  of  error  as  well  as  appeals. 

This  being  the  case,  appeals  and  writs  of  error  are  usually 
treated  together,  under  the  head  of  "Appeal  and  Error,"  but  it 
has  been  thought  better  in  this  work  to  keep  separate  the  procedure 
in  law  from  that  in  equity. 

For  that  reason  writs  of  error  are  herein  treated  separately,  but 
the  chapter  is  only  supplemental  to  chapter  41,  and  only  those 
points  wherein  the  procedure  on  error  differs  from,  or  is  controlled 
by  different  statutes  than,  the  procedure  on  appeal,  are  here  con- 
sidered at  any  length. 

The  arrangement  of  this  chapter  is  parallel,  as  far  as  possible, 
with  that  of  chapter  41 ;  writs  of  error  are  treated  as  constituting 
four  general  classes : 

1.  Writ  of  error  from  United  States  district  courts  to  the  United 
States  Supreme  Court. 

2.  Writ  of  error  from  United  States  district  courts  to  circuit 
courts  of  appeals. 

1  Slovens  v.  Clark,  10  C.  C.  A.  379,  62  Fed.  321;  Highland  Boy  Gold 
Mining  Company  v.  Strickley,  54  C.  C.  A.  186,  116  Fed.  852;  Francisco 
v.  Chicago  &  A".  R.  R.  Co.  79  C.  C.  A.  292.  9  Ann.  Cas.  628,  149  F«>d. 
:r><):  Ghost  v.  United  States.  94  C.  C.  A.  253,  168  Fed.  843;  Missouri  Pac.  R. 
R.  Co.  v.  Chicago  &  A.  R.  R.  Co.  132  U.  S.  191,  33  L.  ed.  309,  10  Sup.  Ct. 
Hep.  65. 


394         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  821 

3.  Writ  of  error  from  circuit  courts  of  appeals  to  Supreme 
Court. 

4.  Writ  of  error  from  state  courts  to  United  States  Supreme 
Court. 

In  addition  to  these  four  classes  of  cases,  there  is  provided  a 
method  of  review  by  the  Supreme  Court  in  cases  where  the  decision 
of  the  circuit  courts  of  appeals  is  otherwise  final  (infra,  chapter 
39). 

Procedure  in  all  four  of  those  general  classes  is  identical,  except 
as  to  the  time  within  which  the  appeal  must  be  sued  out,  and  as 
to  differences  in  practice  due  to  variations  in  the  various  rules  of 
different  circuits.2 

Consequently  all  proceedings  on  error  are  herein  treated  col- 
lectively, except  as  to  time,  while  proceedings  upon  certiorari  or 
certification  of  questions  of  law,  are  separately  treated.  Procedure 
on  error  from  courts  of  Hawaii,  Porto  Rico,  Alaska,  Philippines, 
and  District  of  Columbia,  falls  within  one  of  the  four  classes  enu- 
merated as  indicated. 

§  821.  Parties  to  Writ  of  Error.  In  case  of  a  joint  judg- 
ment, all  parties  who  are  affected  by  it  must  join  in  the  application 
for  a  writ  of  error,  unless  some  of  them,  upon  being  notified  by 
those  of  their  codefendants  who  desire  to  sue  out  the  writ  of  their 
intention  so  to  do,  refuse  to  join ;  in  which  case  the  party  or  parties 
desiring  the  writ  are  entitled  to  it  without  such  joinder  upon  mo- 
tion stating  the  facts.  But  the  notice  and  consequent  order  per- 
mitting the  severance  of  the  parties  must  be  incorporated  in  the 
record.3 

This  notice  and  refusal  and  the  order  allowing  the  writ  upon 
motion  showing  these  facts,  is  known  as  "Summons  and  Sever- 
ance," and  is  essential  to  the  jurisdiction  of  the  appellate  court. 
But  notice  in  open  court  at  the  time  when  the  judgment  is  rendered, 
the  writ  being  allowed  at  that  time  upon  motion,  if  shown  by  the 

2  See  Rules  of  all  Circuits  in  Appendix,  post. 

SHardee  v.  Wilson,  146  U.  S.  180,  36  L.  ed.  933,  13  Sup.  Ct.  Rep.  30; 
Godbe  v.  Tootle,  154  U.  S.  577,  19  L.  ed.  831,  14  Sup.  Ct.  Rep.  1164;  Estis 
v.  Trabue,  128  U.  S.  229,  32  L.  ed.  437,  9  Sup.  Ct.  Rep.  58;  Humes  v.  Third 
Nat.  Bank,  4  C.  C.  A.  668,  54  Fed.  917,  and  cases  there  cited  at  page  920. 


§    826  APPELLATE    PROCEDURE LAW    ACTIONS  395 

record,  amounts  to  summons  and  severance,  and  no  written  notice 
is  then  required.4 

§  822.  Time  for  Writ  of  Error — District  Courts  to  Su- 
preme Court.  A  writ  of  error  from  the  United  States  district 
courts  to  the  United  States  Supreme  Court  must  be  sued  out  with- 
in two  years  from  the  entry  of  judgment.  The  statute  governing 
this  5  is  the  same  as  that  governing  appeals  of  the  same  class.6 

§  823.  Time  for  Writs  of  Error  to  Circuit  Court  of  Ap- 
peals. That  part  of  §  11,  Act  March  3,  1891,  which  prescribes 
six  months  as  the  time  within  which  appeals  must  be  taken  to  the 
circuit  courts  of  appeals,  applies  as  well  to  writs  of  error.7 

§  824.  Time  for  Writs  of  Error  from  Circuit  Court  of  Ap- 
peals to  Supreme  Court.  §  6  of  the  Act  of  March  3,  1891, 
limits  the  time  within  which  both  writs  of  error  and  appeals  may 
be  sued  out,  to  one  year  after  entry  of  judgment.8 

§  825.  Time  to  Sue  Out  Writ  of  Error  to  State  Court. 

§  1003,  R.  S.f  Comp.  St.  1901,  p.  713,  4  F.  8.  A.  666. 
"Writs  of  error  from  a  Supreme  Court  to  a  state  court,  in 
cases  authorized  by  law,  shall  be  issued  in  the  same  manner 
and  under  the  same  regulation,  and  shall  have  the  same  ef- 
fect, as  if  the  judgment  or  decree  complained  of  had  been 
rendered  or  passed  in  the  court  of  the  United  States." 

The  writ  of  error  must,  therefore,  be  allowed  within  two  years 
after  entry  of  judgment,  as  provided  by  §  1008,  R.  S.,  Comp.  St. 
1901,  p.  715,  4  F.  S.  A.  668. 

§  826.  Procedure  on  Error  to  Circuit  Court  of  Appeals 
Same  as  to  Supreme  Court.  The  practice  and  procedure  up- 

4Lamon  v.  Speer  Hardware  Co.  Ill  C.  C.  A.  462,  190  Fed.  734;   Alsop  v. 

Comvay,  110  C.  C.  A.  366,  188  Fed.  572:  Ireton  v.  Penna.  Coal  Co.  107  C.  C.  A. 

304,  185  Fed.  84;   Love  v.  Export  Storage  Co.  74  C.  C.  A.  155,  143  Fed.  1; 

Loveless  v.  Ransom,  46  C.  C.  A.  515,  107  Fed.  627 ;  McNulta  v.  West  Chicago 

Park,  39  C.  C.  A.  545,  99  Fed.  328. 

5R.  S.  1008,  Comp.  St.  1901,  p.  715,  4  F.  S.  A.  662.  (§  2052  infra.) 
6  §  2052,  infra.         7  §  2053,  infra.         «  §  2055,  infra. 


MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  828 

on  error  to  the  circuit  court  of  appeals  is  identical  with  that 
upon  error  to  the  Supreme  Court,  except  as  to  differences  in 
practice  resulting  from  discrepancies  between  the  rules  of  the 
various  circuits.9 

§  827.  Allowance  of  Writ  of  Error.  What  is  said  of  the 
petition  for  appeal  in  chapter  41  10  applies  as  well  to  the  petition 
for  a  writ  of  error,  and  the  form  there  given  will  serve  as  a 
guide  here. 

The  only  distinction  between  the  granting  of  an  appeal  and 
a  writ  of  error  rests  in  the  nature  of  the  right  to  have  the  re- 
view allowed.  In  case  of  an  appeal  the  right  of  review  is  abso- 
lute, and  the  court  cannot  refuse  it;  n  but  a  writ  of  error  may 
be  denied  if  the  grounds  assigned  in  the  assignment  of  errors 
appear  insufficient  to  the  court.12 

§  828.  Amendment  of  Writ  of  Error.  Prior  to  the  pas- 
sage of-  the  act  of  June  1,  1872,  any  formal  defect  in  a  writ  of 
error  defeated  the  jurisdiction  of  the  Supreme  Court,  and  could 
not  be  so  amended  as  to  cure  any  such  defect.13 

§  1005,  R.  S.,  taken  from  the  act  of  June  1,  1872,  permits 
an  amendment  of  writs  of  error  as  to  matters  of  form  subject  to 
the  discretion  of  the  court.  The  section  is  as  follows: 

"The  Supreme  Court  may,  at  any  time,  in  its  discretion 
and  upon  such  terms  as  it  may  deem  just,  allow  an  amend- 
ment to  a  writ  of  error,  when  there  is  a  mistake  in  the  testo 
of  the  writ,  or  a  seal  to  the  writ  is  wanting,  or  when  the  writ, 
is  made  returnable  on  a  day  other  than  the  day  of  the  com- 
mencement of  the  term  next  ensuing  the  issue  of  the  writ, 

9§  11,  Act.  Mar.  3,  1891,  Comp.  St.  1901,  p.  715,  4  F.  S.  A.  668,  infra, 
§  2057. 

10  §  2058,  infra.       "  §  2058,  infra. 

12  Simpson  v.  First  Nat.  Bank,  129  Fed.  257,  63  C.  C.  A.  371. 

13  Insurance  Co.  of  Valley  of  Va.  v.  Mordecai,  21  How.  195,  16  L.  ed.  94; 
Porter   v.    Foley.   21    How/393,    16   L.   ed.    154;    Carrol   v.    Dorsey,   20    How. 
204,  15  L.  ed.  803 ;  Hodge  v.  Williams,  22  How.  87,  16  L.  ed.  237';  Wilson  v. 
Life   Insurance   Co.   12   Pet.   140,   9   L.   ed.   1032:    Deneale   v.   Archer,   8   Pet. 
526,    8    L.    ed.    1033;    Davenport   v.    Fletcher,    16    How.    142,    14    L.    ed.    879; 
Millar   v.   McKenzie,   10   Wall.   582,   19   L.  ed.   1043:    Mussina   v.   Cavazos,   6 
Wall.   355,   361.   18   L.   ed.   810;    The  Protector,   11   Wall.   82,   20   L.  ed.  47; 
Moulder  v.  Forest,  154  U.  S.  567,  19  L.  ed.  154,  14  Sup.  Ct.  Rep.  1207. 


§  828        APPELLATE  PKOCEDURE LAW  ACTIONS  397 

or  when  the  statement  of  the  title  of  the  action  or  parties 
thereto  in  the  writ  is  defective,  if  the  defect  can  be  remedied 
by  reference  to  the  accompanying  record,  and  in  all  other 
particulars  of  form :  Provided,  the  defect  has  not  preju- 
diced, and  the  amendment  will  not  injure  the  defendant  in 
error." 

This  section  permits  amendments  in  the  instances  therein 
enumerated  to  be  allowed  by  the  circuit  court  of  appeals  as  well 
as  by  the  Supreme  Court,  it  being  provided  by  the  act  of  March 
3,  1891  (§  11)  that  "all  provisions  of  law  now  in  force  regulating 
the  methods  and  system  of  review  through  appeals  or  writs  of 
error  shall  regulate  the  method  and  system  of  appeals  and  writs 
of  error  provided  for  in  this  act  in  respect  of  the  circuit  court  of 
appeals,  including  all  provision  for  bonds  or  other  securities  to  be 
required  and  taken  on  such  appeals  and  writs  of  error."  14 

The  sta£ute  is  largely  self-explanatory  as  to  the  cases  in  which 
an  amendment  may  be  allowed,  but  it  is  to  be  borne  in  mind 
that  permission  to  amend  is  not  a  matter  of  right,  but  is  given 
only  when  in  the  discretion  of  the  court  it  is  deemed  just  and 
proper.15  The  theory  of  §  1005  is  that  a  colorable  writ  shall 
operate  as  a  writ  of  error,  the  court  being  given  power  to  amend 
it  in  so  far  as  it  is  informal.16  But  a  purported  w,rit  of  error 
in  the  name  of  the  chief  justice  of  the  supreme  court  of  a  state, 
bearing  the  teste  of  that  chief  justice,  signed  by  the  clerk  and 
sealed  by  the  seal  of  that  court,  but  not  in  the  name  of  the  Presi- 
dent, or  under  the  authority  of  the  United  States,  is  not  a  color- 
able writ  in  such  sense  as  to  allow  amendment.17  However,  a 
writ  running  in  the  name  of  the  President  of  the  United  States, 
but  defective  in  that  it  was  not  tested  by  the  Chief  Justice  of  the 
United  States,  nor  signed  by  the  clerk  of  the  Supreme  Court  of 
the  United  States,  and  did  not  bear  the  seal  of  either  the  Supreme 
Court  or  the  circuit  court,  but,  instead,  was  sealed  with  the  seal 
of  the  supreme  court  of  Texas,  tested  by  the  chief  justice  and 

14  Cotter  v.  Alabama  G.  S.  R.  Co.  61  Fed.  747,  10  C.  C.  A.  35. 
isjVarson  v.  Yewdall,  95  U.  S.  294,  24  L.  ed.  436. 
16  Cotter  v.  Alabama  G.  S.  R.  Co.  61  Fed.  747,  10  C.  C.  A.  35. 
"Bondurant  v    Watson,   103  IT.   S.  278,  26  L.  ed.  447. 


398         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  828 

signed  by  the  clerk  of  that  court,  is  held  to  be  a  colorable  writ 
and  subject  to  amendment.18 

The  power  to  permit  the  amendment  of  a  defective  writ  under 
this  section  is  very  liberal,  and  it  is  not  fatal  that  more  than  six 
months  had  passed  since  the  final  decree  sought  to  be  reviewed 
was  pronounced.  The  statute  allows  the  amendment  at  any  time 
in  the  discretion  of  the  court.19 

Power  to  allow  an  amendment,  however,  depends  primarily 
upon  whether  or  not  the  defect  can  be  remedied  by  reference  to 
the  accompanying  record.  If  it  cannot,  no  amendment  can  be 
granted.20  But  when  an  amendment  is  allowed,  it  dates  back 
by  relation  to  the  date  of  its  original  issuance,  and  presupposes 
jurisdiction  from  that  date.21 

Xo  amendment  can  be  allowed  if  it  will  result  in  prejudice  or 
injury  to  the  adverse  party,  or  if  it  appears  that  the  amendment 
requested,  if  granted,  would  be  useless,  as  in  a  case  where  the 
question  presented  by  the  record  is  already  settled  by  previous 
decisions  of  the  Supreme  Court.22  The  name  of  a  party  omitted 
by  accident  may  be  added  by  way  of  amendment  if  the  same 
is  authorized  by  a  reference  to  the  record,23  but  the  objection  that 
a  plaintiff  is  not  the  real  party  in  interest  cannot  be  set  up  by 
way  of  amendment,  and  the  same  may  be  said  of  the  objection 
that  the  plaintiff  is  without  capacity  to  sue.  These  things  must 
be  set  up  before  trial.24  '  '• 

Amendments  in  "all  particulars  of  form"  have  been  held  to 
include  a  case  where  the  writ  of  error  was  not  attached  to  the 
transcript  nor  made  a  part  of  the  record,  but  was  returned  to 

"Texas,  etc.,  Railway  Co.  v.  Kirk,  111  U.  S.  486,  28  L.  ed.  481,  4  Sup. 
Ct.  Rep.  500. 

19  Cotter  v.  Alabama  G.  S.  R.  Co.  61  Fed.  747,  10  C.  C.  A.  35. 

20  Cotter  v.  Alabama  G.  S.  R.  Co.  61  Fed.  750,  10  C.  C.  A.  35;   Martin  v. 
Burford,   176   Fed.   555,   100  C.  C.  A.  159;    Estis  v.  Trabue,   128   U.   S.  228, 
32  L.  ed.  437,  9  Sup.  Ct.  Rep.  58. 

21  Knickerbocker   Ins.   Co.   v.   Pendleton,   115   U.   S.  339,   29   L.   ed.   432,   6 
Sup.  Ct.  Rep.  74. 

22  Pearson  v.  Yewdall,  95  U.  S.  294,  24  L.  ed.  436. 

23  Walton   v.   Marietta   Chair   Co.   157   U.   S.   346,   39   L.  ed.   725,   15   Sup. 
Ct.  Rep.  626;  Thomas  v.  Green  Co.  77  C.  C.  A.  487,  146  Fed.  969. 

24  Texas   &   P.   R.   Co.   v.   Jackson,   193    Fed.   948,    113    C.   C.   A.   576;    St. 
Louis  &  S.  F.  R.  Co.  v.  Herr,  193  Fed.  950,  113  C.  C.  A.  578;   Northwestern 
S.  S.  Co.  v.  Cochran,  111  C.  C.  A.  626,  191  Fed.  149. 


§  830        APPELLATE  PROCEDURE LAW  ACTIONS  399 

the  appellate  court  upon  the  day  when  the  transcript  was  filed 
therein  properly  indorsed.  Having  performed  its  function,  it 
is  permitted  to  be  attached  to  the  record  after  being  received  by 
the  appellate  court  as  should  have  been  done  in  the  first  instance.25 

\ 

§  829.  Writ  of  Error  from  Supreme  Court — By  Whom  Is- 
sued. 

§  1004,  R.  8.,  Comp.  St.  1901,  p.  713,  4  F.  8.  A.  p.  616 
as  amended  Jan.  22,  1912,  ch.  12,  37  Stat.  at  L.  54.  "Writs 
of  error  returnable  to  the  Supreme  Court  or  a  circuit  court 
of  appeals  may  be  issued  as  well  by  the  clerks  of  the  district 
courts,  under  the  seals  thereof,  as  by  the  clerk  of  the  Su- 
preme Court  or  of  a  circuit  court  of  appeals.  When  so  is- 
sued they  shall  be,  as  nearly  as  each  case  may  admit,  agree- 
able to  the  form  of  a  writ  of  error  issued  by  the  clerk  of  the 
supreme  court  or  the  clerk  of  a  circuit  court  of  appeals." 

§  830.  Assignment  of  Errors. 

§  997,  R.  8.,  Comp.  St.  1901,  p.  712,  4  F.  8.  A.  605. 
"There  shall  be  annexed  to  and  returned  with  any  writ  of 
error  for  the  removal  of  a  cause,  at  the  day  and  place  therein 
mentioned,  an  authenticated  transcript  of  the  record,  an  as- 
signment of  errors,  and  a  prayer  for  reversal,  with  a  cita- 
tion to  the  adverse  party." 

This  assignment  of  errors  must  set  forth  separately  and  par- 

25  Cotter  v.  Alabama  G.  S.  R.  Co.  61  Fed.  747,  10  C.  C.  A.  35.  Amend- 
ments under  this  section  have  been  allowed  in  the  following  cases:  Texas 
R.  Co.  v.  Kirk,  111  U.  S.  486,  28  L.  ed.  481,  4  Sup.  Ct.  Rep.  500;  Course 
v.  Stead,  4  Dall.  22,  1  L.  ed.  724;  Burnham  v.  North  Chicago  Street  R.  R. 
Co.  87  Fed.  168,  30  C.  C.  A.  594;  Alaska  United  Gold  Mining  Co.  v.  Keating, 
116  Fed.  561,  53  C.  C.  A.  655:  Miller  v.  Texas,  153  U.  S.  535,  38  L.  ed. 
812,  14  Sup.  Ct.  Rep.  874;  McPhaul  v.  Lapsey,  20  Wall.  282,  22  L.  ed.  346; 
Walton  v.  Marietta  Chair  Co.  157  U.  S.  342,  39  L.  ed.  725,  15  Sup.  Ct.  Rep. 
626;  Pacific  Bank  v.  Mixter,  114  U.  S.  463,  29  L.  ed.  221,  5  Sup.  Ct.  Rep. 
944;  Moore  v.  Simonds.  100  U.  S.  145,  25  L.  ed.  590;  Gumbel  v.  Pitkin.  113 
U.  S.  545,  28  L.  ed.  1128,  5  Sup.  Ct.  Rep.  616;  Estis  v.  Trabue,  128  U.  S. 
225,  32  L.  ed.  437,  9  Sup.  Ct.  Rep.  58;  United  States  v.  Schoverling,  14(> 
U.  S.  76,  36  L.  ed.  893,  13  Sup.  Ct.  Rep.  24;  Atherton  v.  Fowler,  91  U.  S. 
143,  23  L.  ed.  265;  Evans  v.  Brown,  109  U.  S.  180,  27  L.  ed.  898,  3  Sup. 
Ct.  Rep.  83;  Mossman  v.  Higginson,  4  Dall.  12,  1  L.  ed.  720;  Sea  v.  Conn. 
Mutual  Life  Ins.  Co.  154  U.  S.  659.  25  L.  ed.  772,  14  Sup.  Ct.  Rep.  1191; 
Hampton  v.  Rouse,  15  Wall.  684,  21  L.  ed.  250;  Semmes  v.  United  States, 
91  U.  S.  21,  23  L.  ed.  193;  Nat.  Bank  v.  Bank  of  Commerce.  99  U.  S.  60S, 
25  L.  ed.  362. 


400         MONTGOMEBY'S  MANUAL,  OF  FEDERAL  PBOCEDUBK     §  831 

ticularly  each  error  asserted  and  intended  to  be  urged.26  It  must 
be  filed  with  the  petition  for  the  writ,  and  no  writ  can  be  allowed 
until  the  assignment  has  been  filed.27  The  form  of  assignment' 
suggested  in  chapter  41,  §  2059,  will  suffice  as  a  guide  for  the 
assignment  upon  error. 

§  831.  Citation. 

§  998,  R.  S.f  Camp.  St.  1901,  p.  112,  4  F.  S.  A.  609. 
"When  the  writ  is  issued  by  a  circuit  court  to  a  district  court, 
the  citation  shall  be  signed  by  the  judge  of  such  district 
court,  or  by  the  circuit  judge  of  such  circuit  court,  or  by  a 
justice  of  the  Supreme  Court  and  the  adverse  party  shall 
have  at  least  twenty  days'  notice." 

§  999,  R.  S.,  Comp.  St.  1901,  p.  712,  4  F.  S.  A.  609. 
"When  the  writ  is  issued  by  the  Supreme  Court  to  a  circuit 
court,  the  citation  shall  be  signed  by  a  judge  of  such  cir- 
cuit court,  or  by  a  justice  of  the  Supreme  Court,  and  the 
adverse  party  shall  have  at  least  thirty  days'  notice ;  and  when 
it  is  issued  by  the  Supreme  Court  to  a  state  court,  the  cita- 
tion shall  be  signed  by  the  chief  justice  or  judge  or  chancellor 
of  said  court  rendering  the  judgment  or  passing  the  decree 
complained  of,  or  by  a  justice  of  the  Supreme  Court  of  the 
United  States,  and  the  adverse  party  will  have  at  least  thirty 

days'  notice." 

* 

Citation  in  error,  like  citation  in  appeal,28  is  a  formal  notice 
of  the  allowance  of  the  writ.  It  may  be  waived,  not  being  juris- 
dictional. 

A  distinction  is  drawn,  however,  between  citation  in  appeal, 
and  upon  error,  in  that  notice  in  open  court,  in  the  former,  ex- 
cuses the  issuance  of  the  citation,  while  in  the  latter  it  does  not.29 

The  citation  should  be  signed  as  prescribed  by  R.  S.  998-999, 
Comp.  St.  1901,  p.  712,  4  F.  S.  A.  609,80  but  failure  to  sign 
is  immaterial  if  the  defendant  in  error  enter  his  appearance.81 

26  Supreme  Ccmrt  Rule,   35,   Appendix,  post.  C.  C.  A.  Rule,  11,  Appendix, 
post. 

27  §  2059,  -infra. 

28  §  2060,  infra. 

29  United  States  v.  Phillips,  121  U.  S.  254,  30  L.  ed.  914,  7  Sup.  Ct.  Rep. 
874:   Loveless  v.  Ransom,  109  Fed.  391,  48  C.  C.  A.  434. 

30  §  2000.  infra. 

si  Freeman  v.  Clay,  48  Fed.  849,  1  C.  C.  A.  115. 


§    835  APPELLATE    PROCEDURE LAW    ACTIONS  401 

The  citation  must  be  served  personally  upon  the  attorney  of 
record,  or  the  party  who  recovers  judgment, — the  return  being- 
made  according  to  the  rule  of  court  governing  the  service  of 
citations.32 

§  832.  Bond  on  Error.  The  bond  required  upon  suing  out 
a  writ  of  error  is  governed  by  the  same  provisions  of  law  apply- 
ing to  bond  on  appeal,88  and  the  discussion  contained  in  chapter 
41.  §  2061,  applies  alike  to  bond  on  appeal  and  in  error. 

The  forms  there  set  forth  will  serve  as  forms  on  error,  the 
necessary  changes  in  phraseology  readily  suggesting  themselves. 

§  833.  No  Bond  Required  of  United  States.  A  writ  of 
error  bond  is  not  required  of  the  United  States,  nor  of  any 
party  acting  under  its  direction,  the  taxable  costs  in  such  cases 
being  payable  out  of  the  contingent  fund  of  the  Department  un- 
der whose  directions  the  proceedings  were  instituted.  §  1001, 
R.  S.,  Comp.  St.  1901,  p.  713,  4  F.  S.  A.  615,  quoted  in  chapter 
41,  §  2062,  infra,  applies  as  well  to  writs  of  error  as  to  appeals. 

§  834.  Supersedeas.  Supersedeas  on  error,  as  in  case  of 
appeal,  can  only  be  secured  by  a  strict  compliance  with  the 
statutes  controlling  it.84 

The  discussion  of  Supersedeas  in  appeal,  chapter  41,  §  2062, 
is  entirely  applicable  to  Supersedeas  on  error,  there  being  no 
distinction  as  to  practice,  procedure,  or  effect. 

§  835.  Proceedings  in  Forma  Pauperis.  The  act  of  July 
20,  1892,  Comp.  St.  1901,  p.  706,  2  F.  S.  A.  294,  permitting 
any  citizen  of  the  United  States  to  "commence  and  prosecute  to 
conclusion,"  any  action,  without  prepaying  fees  or  costs  under 
certain  circumstances,  has  been  variously  construed  by  the  various 
circuit  courts  of  appeals,  some  holding  that  it  applies  to  ap- 
peals and  Avrits  of  error,  as  well  as  original  proceedings,  while 
others  took  the  opposite  view.  The  Supreme  Court,  however, 

82  Supreme  Court  Rule,  8,  Appendix,  post.  C.  C.  A.  Rule  14,  Appendix,  post. 
33  §  2061.  infra.         34  §  1007,  R.  S.  infra,  §  2063. 
Montg.— 26. 


402         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  836 

has  decided  that  the  act  applies  to  original  proceedings  only, 
and  does  not  obviate  the  necessity  of  giving  bond  on  appeal  or 
error.  See  infra,  §  2065,  for  the  act  referred  to. 

§  836.  Record  on  Error. 

§  997,  R.  S.,  Comp.  St.  1901,  p.  112,  4  F.  8.  A.  605. 
"There  shall  be  annexed  to  and  returned  with  any  writ  of 
error  for  the  removal  of  a  cause,  at  the  day  and  place  therein 
mentioned,  an  authenticated  transcript  of  the  record,  an  as- 
signment of  errors,  and  a  prayer  for  reversal,  with  a  cita- 
tion to  the  adverse  party." 

In  addition  to  this  section,  the  contents  of  the  transcript  on 
error,  like  that  on  appeal,  is  governed  by  Supreme  Court  Eule  8, 
and  Circuit  Court  of  Appeals  Rules  14  and  15.35 

The  complete  record  upon  a  writ  of  error  taken  from  a  judg- 
ment at  law  consists  of  the  following  papers  and  proceedings : 
The  complaint  or  declaration;  the  subposna  properly  indorsed 
with  the  marshal's  return ;  the  defensive  pleading  and  joining  of 
issue;  proceedings  in  impaneling  the  jury,  verdict  of  the  jury; 
judgment  of  the  court;  bill  of  exceptions;  petition  for  writ  of 
error ;  assignment  of  errors ;  order  allowing  the  writ  of  error ;  the 
writ  of  error ;  the  citation ;  the  bond,  and  the  certificate  of  the 
clerk  authenticating  the  record. 

It  is  not  always  necessary  that  all  the  documents  enumerated 
be  incorporated  in  the  transcript,  and  the  better  practice  is  a 
stipulation  between  counsel,  agreeing  as  to  the  contents  of  the 
record.  If  this  cannot  be  done,  it  is  the  duty  of  the  clerk  to  make 
up  the  record  in  accordance  with  a  precipe  filed  by  the  plaintiff 
in  error.  The  instructions  prepared  by  the  circuit  courts  of 
appeals  of  the  fourth  and  eighth  circuits  36  will  be  found  to  be  of 
use  to  the  practitioner. 

It  is  to  be  noted  that  by  the  terms  of  §  997,  R.  S.,  supra,  the 
transcript  is  to  be  annexed  to  and  returned  with  the  original  writ 
of  error,  and  must  be  authenticated.  The  clerk's  certificate  of 
authentication  may  be  in  substantially  the  following  form: 

35  Appendix,  post.  36  Appendix,  post. 


§  839        APPELLATE  PROCEDURE LAW  ACTIONS  403 

(Title  of  Court  and  Cause.) 

I ,  Clerk  of  the Court,  etc.,  hereby  Certify  the  forego- 
ing transcript,  consisting  of pages  constitutes  a  full,  true  and  correct 

copy  of  the  proceedings  had  and  orders  entered  in  the  above  entitled  cause, 
as  set  forth  therein;  as  the  same  .appears  on  file  and  of  record  in  this 
office,  with  the  exception  of  the  writ  of  error,  the  citation,  and  assignment 
of  errors  herewith  attached,  at  pages  .  .  . . ,  . .  . .,  and  . .  .  .,  respectively,  which 
are  the  original  writ,  assignment,  and  citation. 

The  foregoing  constitutes  the  entire  transcript  in  the  cause. 

Witness  my  hand  and  the  official  seal  of  said  Court,  this  ....  day  of 
,  A.  D.  191... 


Clerk. 

§  837.  Reduction,  Preparation,  and  Filing  of  Record  on 

Sections  2067,  2069,  2070,  infra,  dealing  with  reduction 
and  preparation  of  the  record,  printing  and  filing  in  the  appellate 
courts,  and  the  use  of  the  record  in  the  circuit  courts  of  appeals 
as  part  of  the  transcript  in  the  Supreme  Court,  apply  as  well  to 
proceedings  in  error,  as  on  appeal,  and  are  hereby  referred  to  as 
covering  this  subject. 

§  838.  Time  for  Return  of  Writ  of  Error.  Writs  of  error 
issued  by  the  Supreme  Court  are  returnable  not  exceeding  thirty 
days,  except  when  directed  to  the  courts  of  California,  Oregon, 
Nevada,  Washington,  Utah,  Montana,  Arizona,  Wyoming,  North 
Dakota,  South  Dakota,  Alaska,  Idaho,  Hawaii,  and  Porto  Rico, 
in  which  case  the  time  is  sixty  days  and  to  the  Philippines  when 
it  is  one  hundred  and  twenty  days. 

Writs  of  error  issued  by  the  circuit  courts  of  appeals  are  re- 
turnable within  thirty  days.  See  section  2072,  infra,  where  rules 
fixing  time  are  quoted. 

§  839.  Summary  of  Proceedings  on  Writ  of  Error.  The 
following  are  the  steps  to  be  taken  in  order  to  procure  a  writ  of 
error  from  the  judgment  of  a  Federal  court  in  law  actions,  wheth- 
er the  proceeding  be  upon  writ  of  error  from  the  district  court  to 
the  circuit  court  of  appeals,  from  the  district  court  direct  to  the 
Supreme  Court,  or  from  the  circuit  courts  of  appeals  to  the  Su- 
preme Court  in  cases  where  such  procedure  is  allowable: 


404-        MONTGOMERY'S  MANUAL  OF  FEDERAL  PKOCEDUEE     §  841 

First.  The  petition  for  a  .writ  of  error  must  be  addressed 
in  writing  to  tlje  lower  court  or  to  the  judge  thereof  in  vacation, 
unless  the  writ  of  error  is  taken  and  allowed  in  open  court  at 
the  term  during  which  the  judgment  was  rendered,  in  which  case 
no  written  petition  or  citation  is  required. 

Second.  With  this  petition  must  be  filed  an  assignment  of 
errors. 

Third.  The  order  allowing  the  writ  of  error  must  be  signed 
by  the  justice  or  judge  of  the  lower  court. 

Fourth.  A  writ  of  error  bond,  satisfactory  to  the  judge  allow- 
ing the  writ  of  error,  must  be  furnished  and  approved  by  him 
either  at  the  time  when  the  writ  of  error  is  allowed,  or  within 
a  reasonable  time  thereafter  with  the  permission  of  the  appellate 
court.  This  bond  may  act  as  supersedeas  if  desired. 

Fifth.  The  citation  or  notice  of  the  allowance  of  the  writ  of 
error  must  be  signed  by  the  judge  and  served  upon  the  appellee. 

Sixth.  The  writ  of  error  must  be  issued  either  by  the  clerk 
of  the  district  court,  the  circuit  court  of  appeals,  or  the  Supreme 
Court,  as  the  case  may  be  (supra,  §  829). 

§  840.  Review  by  Certiorari  and  Certification  of  Questions 
of  Law. 

§§  239-240,  Judicial  Code,*  36  Stat.  at  L.  1157,  Comp. 
.St.  1911,  p.  228,  1912  Supp.  F.  8.  A.  v.  1,  pp.  231,  232. 
Methods  of  review  by  certiorari,  and  certification  to  the  Su- 
preme Court,  are  provided  in  the  cases  there  enumerated. 
The  procedure  in  procuring  such  review  of  a  judgment  at 
law  is  in  no  way  different  from  the  same  procedure  in  equity, 
and  is  covered  by  chapter  41,  §§  2074,  2075. 

§  841.  Procedure  on  Error  to  Territories.  The  statutes 
prescribing  procedure  on  review  of  decisions  from  the  courts  of 
Porto  Rico,87  Alaska,38  the  Philippines,89  District  of  Columbia,40 
and  Hawaii 41  apply  not  alone  to  appeals,  but  to  "appeals  and 

37  §  244,  Judicial  Code,  infra,  §  2013. 

38  §  24",  Judicial  Code,  infra,  §  2015. 

39  §  248.  Judicial  Code,  infra,  §  2016. 

40  §§  250,  251,  Judicial  Code,  infra,  §§  2018,  2019. 
«  §  246,  Judicial  Code,  infra,  §  2014. 

"  Drawn  from  §  6  of  Act  of  March  3,  1891,  ch.  517,  26  Stat.  at  L.  828, 
Rose's  Code,  §  1904.  Comp.  St.  1901,  p.  549,  4  F.  S.  A.  409,  which  is  repealed 
by  §  237,  Judicial  Code. 


§  845        APPELLATE  PROCEDURE LAW  ACTIONS          405 

writs  of  error,"  and  chapter  41,  §§  2076-2082,  are  hereby  referred 
to  as  settting  forth  the  rules  of  procedure  applicable  in  all  such 
cases. 

§  842.  Certification  to  Supreme  Court  from  the  Ninth  Cir- 
cuit in  Alaska  Cases. 

§  134,  Judicial  Code*  36  8 tat.  at  L.  1134,  Comp.  St. 
1911,  p.  195,  1912  Supp.  F.  S.  A.  v.  1,  p.  197.  Provides  for 
a  review  by  the  Supreme  Court  of  cases  certified  to  it  by  the 
circuit  court  of  appeals  for  the  ninth  circuit  in  cases  there 
decided,  from  the  district  court  of  Alaska. 

The  discussion  contained  in  chapter  41,  §  1026,  covers  the 
ground. 

§  843.  Procedure  after  Transcript  Reaches  Appellate 
Court.  After  the  transcript  is  properly  before  the  appellate 
court,  the  cause  is  docketed,  heard  and  disposed  of  according-  to 
the  rules  of  the  particular  court  before  which  it  is  conducted.  See 
Appendix  for  rules. 

What  is  said  in  chapter  41,  §  2084-2091,  infra,  with  regard  to 
dismissal  of  appeals,  diminution  of  record,  mandate,  and  pro- 
cedure upon  death  of  party  is  applicable  to  writs  of  error,  and 
need  not  be  repeated. 

§  844.  No  Reversal  for  Error  in  Fact. 

§  1011,  R.  S.,  Comp  St.  1901,  p.  715,  4  F.  S.  A. 
624-  "There  shall  be  no  reversal  in  the  Supreme  Court 
or  in  a  circuit  court  upon  a  writ  of  error,  for  error  in  rul- 
ing any  plea  in  abatement,  other  than  a  plea  to  the  juris- 
diction of  the  court,  or  for  any  error  in  fact." 

§  845.  Damages  and  Costs  on  Error. 

§  1010,  R.  S.,  Comp.  St.  1901,  p.  715,  4  F.  S.  A. 
.623.  "Where,  upon  writ  of  error,  judgment  is  affirmed  in  the 
Supreme  Court  or  a  circuit  court,  the  court  shall  adjudge 
to  the  respondent  in  error  just  damages  for  his  delay,  and 
single  or  double  costs  at  its  discretion." 

l»  Drawn  from  §  202  of  Criminal  Code  of  Alaska,  1  F.  S.  A.  370.  and  §S  ."><u 
and  505  of  Civil  Code  of  Alaska.  1  F.  S.  A.  147,  148. 


CHAPTEE  29. 

A  SUIT  IN  EQUITY— SUMMARY. 

Sec. 

860.  The  Fill. 

861.  Precipe  and  Subpoena. 

862.  Discovery — Interrogatories. 

863.  Depositions  under  Order  of  Court. 

864.  Return  of  Subpoena. 

865.  Time  for  Defensive  Pleading. 

866.  Hearing  of  Motion  to  Dismiss. 

867.  Time  for  Answer  after  Overruling  Motion  to  Dismiss. 

868.  Time  for  Answer  to  Amended  Bill. 

869.  Issue — When  No  Counterclaim  or  Set-off. 

870.  Discovery — Interrogatories  by  Defendant. 

871.  Depositions  in  Special  Cases  after  Filing  the  Bill  before  Issue  Joined. 

872.  Counterclaim — Time  for  Serving  Copy  on  Other  Defendants. 

873.  Motion  to  Strike  Out  Defense. 

874.  Time  for  Reply. 

875.  Issue  When  Counterclaim  or  Set-off  is  Pleaded. 

876.  Trial  Calendar. 

877.  Depositions  after  Case  on  Trial  Calendar. 

878.  Continuances. 

879.  Reinstatement  of  Cases  Dropped  from  Calendar — Time  for. 

880.  Regulation  of  Practice  in  Equity. 

§  860.  The  Bill.1  After  preparing  a  bill  in  equity  in  con- 
formity with  Rule  25,a  the  same  may  be  filed  under  Rule  1T 
providing  that  the  court  is  always  open  for  such  purposes. 

§  861.  Precipe  and  Subpoena.2  Under  Rule  12,to  whenever 
a  bill  is  filed,  and  not  before,  the  clerk  shall  issue  the  process  of 
subpoena  for  defendant  thereon  as  of  course,  on  the  application 
of  plaintiff.  Time  for  return  of  subpoena  is  set  out  in  §  864 
below. 

iCh.  30,  post.  2§§  912-3,   infra. 

»  See  Equity  Rule  25,  with  Annotations,  in  Appendix,  post. 

b  See  Equity  Rule  12,  with  Annotations,  in  Appendix,  post. 

406 


§    867  A    SUIT    IN    EQUITY SUMMARY  407 

§  862.  Discovery — Interrogatories.3  The  plaintiff  at  any 
time  after  filing  the  bill,  and  not  later  than  21  days  after  the 
joinder  at  issue,  may  file  written  interrogatories  for  discovery  of 
facts  and  documents  material  to  the  issue. 

s 

§  863.  Depositions  under  Order  of  Court.4  Rule  47C 
specifies  the  time  of  taking  depositions,  and  makes  an  exception 
as  follows : 

"Unless  otherwise  ordered  by  the  court  or  judge  for  good  cause 
shown."  Under  this  exception  it  seems  that  depositions  may  be 
taken  at  any  time  after  filing  the  bill,  even  before  issue  is 
joined,  but  ordinarily  depositions  cannot  be  taken  until  after 
issued  is  joined.  See  §  871  below. 

§  864.  Return  of  Subpoena.6  Under  Equity  Rule  12,d  the 
subprcna  is  returnable  into  the  clerk's  office  twenty  days  from 
the  issuing  thereof. 

§  865.  Time  for  Defensive  Pleading.6  Under  Equity  Rules 
12e  and  16,f  unless  the  time  shall  be  enlarged  for  cause  shown 
by  a  judge  of  the  court,  defendant  must  file  his  answer  or  other 
defense  to  the  bill  in  the  clerk's  office  on  or  before  the  20th  day 
after  service,  excluding  the  day  thereof. 

§  866.  Hearing  of  Motion  to  Dismiss.7  Under  Equity  Rule 
29, K  if  the  defendant  move  to  dismiss  the  bill  or  any  part  there- 
of the  motion  may  be  set  down  for  hearing  by  either  party  upon 
five  days'  notice. 

§  867.  Time  for  Answer  after  Overruling  Motion  to  Dis- 
miss.8 Under  Equity  Rule  29, ft  if  the  motion  to  dismiss  be  de- 
nied, the  answer  shall  be  filed  within  five  days  thereafter. 

3§  900,  infra.  4  §§   1000,  1001,   infra.        5§  oil,  infra. 

6  §  930,  infra.  7  §  956,  infra.  8  §  972,  infra. 

c  See  Equity  Rule  47,  with  Annotations,  in  Appendix,  post. 
a  See  Equity  Rule  12,  with  Annotations,  in  Appendix,  post. 
«  See  Equity  Rule  12,  with  Annotations,  in  Appendix,  post. 
'See  Equity  Rule  16,  with  Annotations,  in  Appendix,  post. 
K  See  Equity  Rule  29,  with  Annotations,  in  Appendix,  post. 
h  See  Equity  Rule  29,  with  Annotations,  in  Appendix,  post. 


408         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  871 

§  868.  Time  for  Answer  to  Amended  Bill.9  Under  Equity 
Rule  32,1  the  defendant  shall  answer  an  amendment  to  the  bill 
made  after  answer  is  filed,  within  ten  days  after  that  on  which 
the  amendment  or  amended  bill  is  filed  unless  the  time  is  enlarged 
or  otherwise  ordered  by  the  judge  of  the  court. 

§  869.  Issue — When  No  Counterclaim  or  Set-off.10  Under 
Equity  Rule  31,J  unless  the  answer  assert  a  set-off  or  counter- 
claim, no  reply  shall  be  required  without  special  order  of  the  court 
or  judge,  but  the  cause  shall  be  deemed  at  issue  upon  the  filing 
of  the  answer.  If  a  set-off  or  counterclaim  be  filed,  presumably 
the  case  is  at  issue  upon  filing  the  reply.  See  §  875  below. 

§  870.  Discovery — Interrogatories  by  Defendant.11  Under 
Equity  Rule  58,^  the  defendant  at  any  time  after  filing  his 
answer  not  later  than  twenty-one  days  after  joinder  of  issue,  may 
file  interrogatories  in  writing  for  the  discovery  of  facts  and  docu- 
ments material  to  his  defense  of  the  cause. 

§  871.  Depositions  in  Special  Cases  after  Filing  the  Bill 
before  Issue  Joined.12  Under  Rule  54,  *  as  a  general  rule,  depo- 
sitions under  Revised  Statutes,  §§  863,  865,  866,  and  867,  are  to 
be  taken  after  cause  is  at  issue,  and  under  Rule  47  depositions 
are  only  taken  for  good  and  exceptional  cause  after  the  cause 
is  at  issue,  but  in  Equity  Rule  47  m  an  exception  is  provided  as 
follows: 

".  .  .  All  depositions  taken  under  a  statute,  or  under 
any  such  order  of  court,  shall  be  taken  and  filed  as  follows, 
unless  otherwise  ordered  by  the  court  or  judge  for  good  cause 
sliown;  .  .  ." 

9  Ibid.  10  §  979,  infra.  "  §   975,   infra. 

12  §§  1000,  1001,  infra. 

*  See  Equity  Rule  32,  with  Annotations,  in  Appendix,  post. 

J  See  Equity  Rule  31,  with  Annotations,  in  Appendix,  post. 

k  See  Equity  Rule  58,  with  Annotations,  in  Appendix,  post. 

1  See  Equity  Rule  54,  with  Annotations,  in  Appendix,  post. 

">  See  Equity  Rule  47.  with  Annotations,  in  Appendix,  post. 


§    8TG  A    SUIT    IN    EQUITY SUMMARY  409 

Mention  is  made  of  the  subject  here  in  order  to  call  attention 
to  this  exception  permitting  depositions  to  be  taken  before  issue 
is  joined. 

§  872.  Counterclaim — Time  for  Serving  Copy  on  Other 
Defendants.18  Under  Equity  Rule  31,"  if  the  counterclaim  is  one 
which  affects  the  rights  of  other  defendants,  they  or  their  solicitors 
shall  be  served  with  a  copy  of  the  same  within  ten  days  from  filing 
thereof. 

§  873.  Motion  to  Strike  Out  Defense.14  Under  Equity 
Rule  33,°  if  an  answer  set  up  an  affirmative  defense,  set-off,  or 
counterclaim,  the  plaintiff  may,  upon  five  days'  notice,  or  such 
further  time  as  the  court  may  allow,  test  the  sufficiency  of  the 
same  by  motion  to  strike  out. 

§  874.  Time  for  Reply.15  If  a  reply  is  required  to  a  set-off 
or  counterclaim  pleaded  in  the  answer,  plaintiff  shall  reply  under 
Equity  Rule  31,p  within  ten  days  after  filing  of  the  answer  unless 
a  longer  time  be  allowed  by  the  court  or  judge.  Other  defendants 
should  reply  ten  days  after  service  of  a  copy  of  the  answer  upon 
them. 

§  875.  Issue  When  Counterclaim  or  Set-off  is  Pleaded.16 
Unless  the  answer  assert  a  set-off  or  counterclaim,  the  cause  shall 
be  deemed  at  issue  upon  the  filing  of  the  answer,  but  if  the  answer 
include  a  set-off  or  counterclaim,  presumably  the  cause  would  be 
at  issue  upon  the  filing  of  the  reply. 

§  876.  Trial  Calendar.  After  the  time  has  elapsed  for  tak- 
ing and  filing  depositions  under  these  rules,  the  case  shall  be 
placed  on  the. trial  calendar. 

13  §   970,   infra.  "  §  978,  infra.  «  §   979,   infra. 

16  Ibid. 

n  See  Equity  Rule  31,  with  Annotations,  in  Appendix,  post. 

o  See  Equity  Rule,  33  with  Annotations,  in  Appendix,  pogt. 

P  See  Equity  Rule  31,  with  Annotations,  in  Appendix,  post. 


410        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  880 

§  877.  Depositions  after  Case  on  Trial  Calendar.  Under 
Equity  Kule  56,  no  depositions  shall  be  taken  after  the  case  is 
placed  upon  the  trial  calendar,  except  upon  some  strong  reason 
shown  by  affidavit  disclosing  why  the  testimony  of  the  witness 
cannot  be  had  orally  on  the  trial,  why  his  deposition  has  not  been 
before  taken,  and  setting  out  the  testimony  which  it  is  expected 
the  witness  will  give. 

§  878.  Continuances.  Under  Rule  57,Q  a  case  may  be  passed 
over  to  another  day  of  the  same  term  by  consent  of  the  counsel 
or  order  of  the  court. 

A  case  shall  not  be  continued  beyond  the  term,  save  in  excep- 
tional cases  by  order  of  the  court  upon  good  cause  shown  by  af- 
fidavit and  upon  such  terms  as  the  court  shall  in  its  discretion 
impose,  and  the  case  shall  be  dropped  from  the  trial  calendar 
subject  to  reinstatement  within  one  year  on  application  to  the 
court  by  either  party,  in  which  event  it  shall  be  heard  in  the 
earliest  convenient  day. 

§  879.  Reinstatement  of  Cases  Dropped  from  Calendar — 
Time  for.  Under  Equity  Rule  57,r  unless  a  case  dropped  from 
the  trial  calendar  is  reinstated  within  the  year,  the  suit  shall  be 
dismissed  without  prejudice  to  a  new  one. 

§  880.  Regulation  of  Practice  in  Equity. 

§  917,  R.  8.,  Comp.  St.  1901,  p.  684,  4  F.  8.  A.  583, 
Rose's  Code,  §  802.  "The  Supreme  Court  shall  have  power 
to  prescribe,  from  time  to  time,  and  in  any  manner  not  in- 
consistent with  any  law  of  the  United  States,  the  forms  of 
writs  and  other  process,  the  modes  of  framing  and  filing 
proceedings  and  pleadings,  of  taking  and  obtaining  evidence, 
of  obtaining  discovery,  of  proceeding  to  obtain  relief,  of 
drawing  up,  entering,  and  enrolling  decrees,  and  of  proceed- 
ing before  trustees  appointed  by  the  court,  and  generally  to 
regulate  the  whole  practice,  to  be  used,  in  suits  in  equity 
or  admiralty,  by  the  circuit  and  district  courts." 

V  See  Equity  Rule  57,  with  Annotations,  in  Appendix,  post. 
«•  See  Equity  Rule  57,  with  Annotations,  in  Appendix,  post. 


§    880  A    SUIT    IN    EQUITY — SUMMARY  411 

§  918,  R.  S.f  Camp.  St.  1901,  p.  685,  4  F.  8.  A. 
585,  Rose's  Code,  §  805.  "The  several  circuit  and  district 
courts  may,  from  time  to  time,  and  in  any  manner  not  in- 
consistent with  any  law  of  the  United  States,  or  with  any 
rule  prescribed  by  the  Supreme  Court  under  the  preceding- 
section,  make  rules  and  orders  directing  the  returning  of 
writs  and  processes,  the  filing  of  pleadings,  the  taking  of 
rules,  the  entering  and  making  up  of  judgments  by  default, 
and  other  matters  in  vacation,  and  otherwise  regulate  their 
own  practice  as  may  be  necessary  or  convenient  for  the  ad- 
vancement of  justice  and  the  prevention  of  delays  in  pro- 
ceedings." 


CHAPTER  30. 


THE  BILL  IN  EQUITY. 

Sec. 

890.  General  Statement. 

891.  Differences  between  State  and   Federal  Statement  of  Cause  of  Action. 

892.  Contents  of  a  Bill  in  Equity— Equity  Rule  25. 

893.  Caption  of  the  Bill. 

894.  Citizenship  and  Residence  of  Parties. 

895.  Jurisdictional  Grounds. 

896.  Statement  of  Ultimate  Facts — The  Cause  of  Action. 

897.  Proper  Parties. 

898.  The  Prayer  of  the  Bill. 

899.  Form  of  the  Bill. 

900.  Discovery. 

901.  Stockholders'   Bill. 

902.  Same — Old  and  New  Rules  Compared. 

903.  Same — Purposes  of  the  Rule. 

904.  Amendments  of  Bill. 

905.  Amendment — Where  Plaintiff  Fails  to  Set  Down  for  Argument  Objection 

in  Answer  for  Defect  of  Parties. 

906.  Amendment  on  Death  of  Party. 

907.  Supplemental  Pleading. 

908.  Parties 

909.  Joint  and  Several  Demands. 

§  890.  General  Statement.  The  initial  pleading  in  a  suit 
in  equity  is  the  bill.  It  is  analogous  to  the  declaration  in  an 
action  at  law.  While  in  the  past  the  established  formality  of  its 
structure  placed  it  in  a  class  apart  from  most  modern  pleadings., 
and  while  from  the  very  nature  of  our  Federal  practice  this 
is  still  true  to  some  extent,  there  is  nevertheless  manifested  in 
the  equity  rules  that  took  effect  February  1,  1913,  a  strong  tend- 
ency toward  greater  simplicity  and  expedition  of  pleading,  and 
toward  conformity  with  the  rules  of  pleading  governing  the  form 
and  structure  of  the  complaint  in  a  civil  action,  as  adopted  in  the 
various  states  under  the  reform  or  Code  procedure. 

412 


§    892  THE  BILL  IN  EQUITY  413 

The  Supreme  Court  of  the  United  States,  by  Equity  Rule  18,a 
has  abrogated  technical  forms  of  pleading  by  providing:  "Unless 
otherwise  prescribed  by  statute  or  these  rules,  the  technical  forms 
of  pleadings  in  equity  are  abolished." 

§  891.  Differences  between  State  and  Federal  Statement 
of  Cause  of  Action.  A  bill  in  equity  differs  from  the  statement 
of  a  similar  cause  of  action  in  the  state  court  in  these  five  main 
points,  — (1)  The  citizenship  and  residence  of  each  party  must 
be  shown;  (2)  a  ground  of  Federal  jurisdiction  must  be  set 
out;  (3)  in  cases  where  the  amount  in  controversy  is  material 
this  must  be  distinctly  averred;  (4)  a  ground  of  equitable  juris- 
diction must  appear;  (5)  the  bill  need  not  be  verified  unless 
special  relief,  pending  the  suit  is  desired. 

The  citizenship  of  each  party  must  necessarily  be  shown  where 
the  basis  of  the  court's  jurisdiction  is  diverse  citizenship,  and, 
for  the  sake  of  uniformity,  and  as  bearing  oftentimes  on  the  ques- 
tion of  venue,  this  is  also  required  where  the  ground  of  juris- 
diction is  a  Federal  question. 

The  Federal  courts  being  courts  of  limited  jurisdiction,  a 
ground  of  jurisdiction  must  be  made  to  appear,  which,  in  cases 
of  concurrent  jurisdiction  with  state  courts,  is  either  diverse 
citizenship  or  a  Federal  question,  and  in  both  such  cases  it  must 
also  appear  that  the  amount  in  controversy,  exclusive  of  interest 
and  costs,  must  exceed  the  sum  or  value  of  $3,000,1  unless  ex- 
cepted  under  §  24,  Judicial  Code. 

§  892.  Contents  of  a  Bill  in   Equity — Equity   Rule   25. b 

''Bill  of  complaint — contents.  Hereafter  it  shall  be  suf- 
ficient that  a  bill  in  equity  shall  contain,  in  addition  to  the 
usual  caption : 

"First,  the  full  name,  when  known,  of  each  plaintiff  and 
defendant,  and  the  citizenship  and  residence  of  each  party. 
If  any  party  be  under  any  disability  that  fact  shall  be  stated. 

"Second,  a  short  and  plain  statement  of  the  grounds  upon 
which  the  court's  jurisdiction  depends. 

1  §892,  infra,  above. 

»  See  Equity  Rule  ]8,  with  Annotations,  in  Appendix,  post. 

*  See  Equity  Rule  25,  with  Annotations,  in  Appendix,  post. 


414        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  894 

"Third,  a  short  and  simple  statement  of  the  ultimate  facts 
upon  which  the  plaintiff  asks  relief,  omitting  any  mere  state- 
ment of  evidence. 

"Fourth,  if  there  are  persons  other  than  those  named  as  de- 
fendants who  appear  to  be  proper  parties,  the  bill  should 
state  why  they  are  not  made  parties — as  that  they  are  not 
within  the  jurisdiction  of  the  court,  or  cannot  be  made  parties 
without  ousting  the  jurisdiction. 

"Fifth,  a  statement  of  and  prayer  for  any  special  relief 
pending  the  suit  or  on  final  hearing,  which  may  be  stated  and 
sought  in  alternative  forms.  If  special  relief  pending  the 
suit  be  desired,  the  bill  should  be  verified  by  the  oath  of  the 
plaintiff,  or  someone  having  knowledge  of  the  facts  upon 
which  such  relief  is  asked." 

§  893.  Caption  of  the  Bill.  Equity  Rule  25  c  makes  five  speci- 
fications for  framing  a  bill  in  equity  "in  addition  to  the  usual 
caption." 

The  title  of  the  court  and  the  title  of  the  action  constitute  the 
"usual  caption"  mentioned  in  Rule  25  of  the  bill,  but  are  not 
under  the  rules  a  part  of  it  so  as  to  cure  defects  of  the  statement 
of  the  cause  of  action. 

It  may  be  set  out  in  the  following  manner : 

IN    THE     DISTRICT    COURT    OF    THE    UNITED    STATES     FOR     THE 
DISTRICT  OF , DIVISION  SITTING  AT   


John  Doe, 
Plaintiff, 


vs. 


Richard  Roe, 
Defendant, 


COMPLAINT  IN  EQUITY. 


§  894.  Citizenship  and  Residence  of  Parties.  It  has  always 
been  a  requirement  of  bills  in  equity  in  the  Federal  courts  that 
"the  full  name,  when  known,  of  each  plaintiff  and  defendant, 
and  the  citizenship  and  residence  of  each  party,"  should  be  set 
out,  the  purpose  being  to  show  jurisdiction  when  the  same  depends 
upon  diversity  of  citizenship  and  when  the  ground  of  jurisdic- 
tion is  a  Federal  question  for  the  sake  of  uniformity,  and  in  both 

c  See  Equity  Rule  25,  with  Annotations,  in  Appendix,  post. 


§    895  THE   BILL  IN  EQUITY  415 

cases  to  protect  the  parties  by  enabling  them  to  locate  and  identify 
each  other  with  certainty  with  a  view  to  compelling  obedience  to 
any  order  of  the  court,  and  to  inform  the  court  as  well  as  the 
opposing  party  of  the  conditions  and  disabilities,  if  any,  of  the 
.respective  parties,1  and  as  bearing  in  many  cases  on  the  question  of 
venue. 

Following  the  caption  is  the  statement  of  the  citizenship  and 
residence  of  each  party,  as  follows : 

"John  Doe,  a  citizen  of  the  State  of ,  residing  in 

County  of  said  State,  alleges  as  his  bill  of  complaint  against  Richard  Roe, 

a  citizen  of  the  State  of  and  residing  in   County, 

in  said  State  as  follows:" 

If  one  or  both  of  the  parties  is  a  corporation,  it  must  be  desig- 
nated as  such.la 

"Duly  organized  and  existing  under  the  laws  of  the  state  of  - — , 

(designating  the  State)  and  with  its  principal  place  of  business  at  — 
(City  and  County)  and  a  citizen  of  said  state." 

§  895.  Jurisdictional  Grounds.  "A  short,  plain  statement 
of  the  facts  upon  which  the  court's  jurisdiction  depends"  refers 
to  the  grounds  of  Federal  jurisdiction  which  must  affirmatively 
appear  and  must  be  accurate  and  explicit,  leaving  nothing  for  in- 
ference.2 If  the  Jurisdictional  ground  is  diversity  of  citizenship, 
the  particular  state  and  county  of  which  each  party  is  a  citizen 
must  be  set  forth  by  name,  and  it  must  be  alleged  that  the  party 
is  a  "citizen,"  not  merely  a  "resident,"  or  "inhabitant,"  thereof.8 
In  these  cases,  too,  the  venue  of  the  action  is  placed  by  statute,  in 
the  district  of  the  plaintiff's  or  defendant's  residence,  and  it  must 
therefore  be  alleged  that  the  suit  is  brought  in  the  district  court 
of  the  district  of  residence.4 

It  must  be  remembered  that  where  the  jurisdiction  depends  on 
diversity  of  citizenship  the  test  of  jurisdiction  is  citizenship,  not 

ISimkins,  "A  Federal  Equity  Suit"   (2d  ed.)   p.  269. 

la  Ibid.  pp.  267,  8.  2  Ibid.  3  ibid. 

4  Ibid.  p.  270. 


416         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  896 

residence,  or  habitation,  and  nothing  short  of  an  allegation  of  citi- 
zenship will  suffice. 

As  to  allegations  of  a  Federal  question,  see  chapter  7. 

So  important  is  the  affirmative  showing  of  these  jurisdictional 
facts  in  the  bill,  that  no  appeal  will  be  entertained  unless  they 
plainly  appear  by  the  record,  even  though  no  objection  be  raised 
in  the  court  below.  An  insufficient  averment  of  jurisdictional 
facts  may,  however,  be  amended.6 

§  896.  Statement  of  Ultimate  Facts — The  Cause  of  Action. 
A  statement  of  the  cause  of  action  showing  the  grounds  of  equi- 
table relief  should  be  a  "short  and  simple  statement  of  the  ultimate 
facts  upon  which  the  plaintiff  asks  relief,  omitting  any  mere  state- 
ment of  evidence." 

In  this  respect  the  bill  in  equity  in  the  Federal  courts  differs 
little,  if  any,  from  the  better  forms  required  in  the  reformed  or 
code  procedure. 

Ultimate  facts.  The  statement  of  the  plaintiff's  case  must  be 
composed  of  allegations  of  fact  only, — not  inferences  drawn  from 
facts,  or  mere  conclusions  of  law.  The  meaning  of  the  phrase 
"ultimate  facts ;  "  as  used  in  the  rule,  is  perhaps  best  explained 
by  the  last  clause  of  the  third  paragraph  of  the  rule  itself,  to  wit, 
— "omitting  any  mere  statement  of  evidence."  That  is  to  say, 
ultimate  facts  are  those  facts  upon  which  the  plaintiff's  case 
directly  depends,  and  which  are  to  be  proved  by  the  evidence.  A 
statement  of  the  ultimate  facts  is  a  statement  of  the  issues  in- 
volved,— not  of  the  evidence  available  to  prove  the  issues. 

These  ultimate  facts  should  be  alleged  in  positive  form,  not 
hypothetically  or  by  way  of  recital,  although  it  has  been  held  that 
if  the  fact  appear  by  necessary  implication,  the  pleading  is  not 
defective.7 

Allegations  on  information  and  belief  are  also  permitted  where 
the  facts  are  peculiarly  within  the  knowledge  of  the  defendant.8 

The  "short  and  simple  statement  of  ultimate  facts"  has  long 

«Thid.  pp.  270,  272. 

7  Investor  Pub.  Co.  of  Mass.  v.  Dobinson  et  al.  72  Fed.  603. 

8  Leavenworth  and  others  v.  Pepper  and  others.  32  Fed.  718. 


$    81)7  THE  BILL  IN  EQUITY  417 

been  the  end  in  view  in  drawing  bills  in  equity,  but  the  statement 
must  not  be  made  so  short  and  simple  as  to  omit  essential  allega- 
tions required  to  make  a  cause  of  action. 

Infringement  of  patent.    Under  previous  rules  it  has  been  held 

sthat  a  bill  in  a  suit  for  the  infringement  of  a  patent  must  not 

only  contain  an  allegation  of  the  due  issuance  of  the  patent,  but 

also  of  all  the  facts  upon  which  the  authority  to  so  issue  it  depends. 

The  new  rule  being  silent  as  to  the  necessity  of  these  conditions, 
and  as  such  allegations  have  been  held  not  to  violate  the  rule 
requiring  only  ultimate  facts  to  be  alleged,  it  is  an  open  question 
whether  or  not  the  pleader  is  still  obliged  as  formerly  to  set 
up  these  conditions  precedent. 

Excusing  laches.  If  it  appears  from  the  bill  that  there  has 
been  delay  in  bringing  the  suit  so  that  the  defense  of  laches 
might  be  interposed,  it  becomes  necessary  to  anticipate  the  de- 
fense and  excuse  the  delay.  The  facts  constituting  the  excuse 
must  be  clearly  and  distinctly  alleged,  to  enable  the  court  to 
determine  whether  the  suit  has  been  prosecuted  with  due  dili- 
gence. 

Fraud.  It  is  also  a  well-established  rule  that  facts  constituting 
fraud,  accident,  or  mistake  must  be  specifically  alleged.  Charges 
of  fraud  and  the  like  must  be  clearly  proved,  and  the  defendant 
is  entitled  to  be  informed  by  the  bill  as  to  the  exact  nature  of  the 
charges. 

Complete  statement.  The  statement  of  the  plaintiff's  case  is 
the  most  important  part  of  the  bill.  It  must  contain  all  the 
material  allegations  upon  which  the  plaintiff  relies.  It  must  state 
the  case  completely,  for  the  court  has  no  power  to  grant  relief 
not  shown  by  the  statement  to  be  within  the  issues. 

§  897.  Proper  Parties.  "If  there  are  persons  other  than 
those  named  as  defendants  who  appear  to  be  proper  parties,  the 
bill  should  state  why  they  are  not  made  parties, — as  that  they 
are  not  within  the  jurisdiction  of  the  court,  or  cannot  be  made 
parties  without  ousting  the  jurisdiction." 

Proper  parties  are  those  whose  interest  in  the  subject-matter 

of  the  litigation  may  be  conveniently  settled  by  making  them 
Montg. — 27. 


418         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  898 

parties  thereto,  but  whose  presence  is  not  absolutely  essential  to  a 
final  determination  of  the  matter. 

Classification  of  parties.  In  Shields  v.  Barrow,  17  How.  130, 
parties  are  classified  as:  "(1)  Formal  parties.  (2)  Persons  having 
an  interest  in  the  controversy  and  who  ought  to  be  made  parties, 
in  order  that  the  court  may  act  on  that  rule  which  requires  it  to 
decide  upon  and  finally  determine  the  entire  controversy,  and  do 
complete  justice  by  adjusting  all  the  rights  involved  in  it.  These 
persons  are  commonly  termed  'necessary  parties/  but  if  their 
interests  are  separable  from  those  of  the  parties  before  the  court, 
so  that  the  court  can  proceed  to  a  decree,  and  do  complete  and 
final  justice  without  affecting  other  persons  not  before  the  court, 
the  latter  are  not  indispensable  parties.  (3)  Parties  who  not  only 
have  an  interest  in  the  controversy,  but  an  interest  of  such 
nature  that  a  final  decree  cannot  be  made  without  either  affecting 
that  interest,  or  leaving  the  controversy  in  such  a  condition  that  its 
final  determination  may  be  wholly  inconsistent  with  equity  and 
good  conscience." 

It  has  long  been  held,  and  was  formerly  a  part  of  Equity  Rule 
47,  and  is  now  expressly  provided  by  Rule  39,  that  the  court 
may,  in  its  discretion,  determine  the  suit  without  the  presence 
of  proper  parties,  so  that  the  purpose  of  the  provision  of  Rule  25, 
above  quoted,  is  undoubtedly  to  place  clearly  before  the  court 
the  reason,  if  any,  for  the  nonjoinder  of  such  parties,  in  order  that 
the  court  may  exercise  its  discretion  with  regard  thereto. 

§  898.  The  Prayer  of  the  Bill.  "A  statement  of,  and  prayer 
for  any  special  relief  pending  the  suit,  or  upon  final  hearing, 
may  be  stated  and  sought  in  alternative  forms.  If  special  relief 
pending  the  suit  be  desired,  the  bill  should  be  verified  by  the 
oath  of  the  plaintiff,  or  someone  having  knowledge  of  the  facts 
upon  which  the  relief  is  asked." 

The  prayer  for  process  is  no  longer  necessary  inasmuch  as 
Equity  Rule  12  provides  that  "whenever  a  bill  is  filed,  the  clerk 
shall  issue  the  process  of  subpoena  thereon,  as  of  course,  upon  the 
application  of  the  plaintiff." 

9  See  also  16  Cyc.  190,  for  definition  of  indispensable  parties. 


§    899  THE  BILL  IN   EQUITY  419 

It  would  also  seem  that  a  general  prayer  for  relief  is  no  longer 
necessary,  although  the  cautious  pleader  will  undoubtedly  con- 
tinue to  incorporate  it  in  his  bill,  there  being  no  express  prohibi- 
tion of  its  use,  and  in  view  of  the  fact  that  a  general  prayer  for 
relief  has  been  held  under  former  rules  sufficient  to  save  the  com- 
plaint from  attack  by  demurrer  when  the  facts  were  sufficiently 
alleged,  but  the  pleader  had  mistaken  the  special  relief  to  which 
he  was  entitled. 

But  the  general  prayer  for  relief  cannot  give  the  power  to  grant 
relief  other  than  that  shown  to  be  due  the  plaintiff  under  the  facts 
alleged,  and  it  is  undoubtedly  better  pleading  under  the  new  rules 
to  ask  for  all  the  relief  desired  by  appropriate  special  prayers 
which,  as  provided  in  the  rules,  may  be  stated  and  sought  in  al- 
ternative forms.  This  provision,  authorizing  prayers  for  relief 
in  alternative  forms,  while  it  has  never  before  appeared  in  the 
rules,  is  nevertheless  merely  the  expression,  in  the  form  of  a  rule, 
of  what  has  been  held  to  be  permissible  in  former  adjudicated 
cases.10 

The  alternatives,  however,  must  be  consistent,  as  the  bill  will 
otherwise  become  multifarious.  If  at  the  hearing  it  appears 
that  the  prayer  is  inconsistent  with  the  plaintiff's  statement  of 
his  case,  an  amendment  may,  in  some  cases,  be  permitted. 

§  899.  Form  of  the  Bill.  The  bill  need  not  be  sworn  to  by 
the  plaintiff,  unless  some  special  relief  such  as  an  injunction  or 
writ  of  ne  exeat  be  desired,  pending  the  suit,  in  which  event  it 
must  be  verified  as  required  by  the  rule  quoted  above. 

The  bill  then  becomes  in  the  nature  of  an  affidavit,  upon  which 
proceedings  for  the  issuance  of  the  writs  granted  may  be  based. 

Equity  Ride  Jf2.A  "Every  bill  or  other  pleading  shall 
be  signed  individually  by  one  or  more  solicitors  of  record,  and 
such  signatures  shall  be  considered  as  a  certificate  by  each 
solicitor  that  he  has  read  the  pleading  so  signed  by  him ;  that 
upon  the  instructions  laid  before  him  regarding  the  case  there 
is  good  ground  for  the  same ;  that  no  scandalous  matter  is  in- 

10  Jones  v.  Missouri-Edison  Electric  Co.  144  Fed.  765,  75  C.  C.  A.  631. 
«l  See  Equity  Rule  24,  with  Annotations,  in  Appendix,  post. 


420          MONTGOMERY'S  MANUAL  OF  FKDEKAI.  PKOCKWIM-:     $  '.'(>l 

serted  in  the  pleading;   and  that  it  is  not   interposed  for 
delay." 

If  the  bill  is  required  to  be  verified,  which  is  only  when  special 
relief  pending  the  suit  is  desired,  it  is  provided : 

Equity  Rule  56'.e  "Every  pleading  which  is  required  to  be 
sworn  to  by  statute  or  these  rules  may  be  verified  before  any 
justice  or  judgment  of  any  court  of  the  United  States,  or  of 
any  state  or  territory,  or  of  the  District  of  Columbia,  or  any 
clerk  of  any  court  of  the  United  States,  or  of  any  territory, 
or  of  the  District  of  Columbia,  or  any  notary  public." 

An  affirmation  in  lieu  of  oath  may  be  used. 

Equity  Rule  78.*  "Whenever  under  these  rules  an  oath  is 
or  may  be  required  to  be  taken,  the  party  may,  if  conscien- 
tiously scrupulous  of  taking  an  oath,  in  lieu  thereof,  make 
solemn  affirmation  to  the  truth  of  the  facts  stated  by  him." 

§  900.  Discovery. 

Pt.  Equity  Rule  58.K  "The  plaintiff  at  any  time  after 
filing  the  bill,  and  not  later  than  twenty-one  days  after  is- 
sue, .  .  .  may  file  interrogatories  in  writing  for  the 
discovery  by  the  opposite  party  or  parties  of  facts  and 
documents  material  to  the  support  ...  of  the  cause, 
with  a  note  at  the  foot  thereof  stating  which  of.  the  inter- 
rogatories each  of  the  parties  is  required  to  answer.  .  .  ." 
&  f  i 

Further  discussions  on  this  subject  will  be  found  under  chap- 
ter 35  on  a  "Trial— Equity  Suits,"  sections  1006  to  1011,  hereafter 


§  901.  Stockholders'  Bill. 

Equity  Rule  21. u  "Every  bill  brought  by  one  or  more 
stockholders  in  a  corporation  against  the  corporation  and 
other  parties,  founded  on  rights  which  may  properly  be 
asserted  by  the  corporation,  must  be  verified  by  oath,  and 

«  See  Equity  Rule  36,  with  Annotations,  in  Appendix,  post. 
*  See  Equity  Rule  78,  with  Annotations,  in  Appendix,  post. 
K  See  Equity  Rule  58,  with  Annotations,  in  Appendix,  post. 
1»  See  Equity  Rule  27.  with  Annotations,  in  Appendix,  post. 


§    902  THE  BILL  IN  EQUITY  421 

must  contain  an  allegation  that  the  plaintiff  was  a  share 
holder  at  the  time  of  the  transaction  of  which  he  complains, 
or  that  his  share  had  devolved  on  him  since  by  operation 
of  law,  and  that  the  suit  is  not  a  collusive  one  to  confer 
on  a  court  of  the  United  States  jurisdiction  of  a  case  of 
which  it  would  not  otherwise  have  cognizance.  It  must  also 
set  forth  with  particularity  the  efforts  of  the  plaintiff  to  se- 
cure such  action  as  he  desires  on  the  part  of  the  managing 
directors  or  trustees,  and  if  necessary,  of  the  shareholders, 
and  the  causes  of  his  failure  to  obtain  such  action,  or  the 
reason  for  not  making  such  effort." 

This  "verification  by  oath"  is  a  requirement  peculiar  to  this 
class  of  bills  only,  unless  special  relief  pending  suit  be  desired, 
as  discussed  under  §  898,  above. 

§  902.  Same — Old  and  New  Rules  Compared.  The  rule 
is  a  re-embodiment  of  Rule  94,  promulgated  in  1882,  the  lan- 
guage being  identical,  with  the  exception  of  the  last  phrase,  "or 
the  reason  for  not  making  such  effort,"  which  is  new. 

An  examination  of  the  decisions  construing  former  Rule  94 
makes  clear  the  reasons  for  the  addition  of  the  phrase,  it  having 
been  held  that  if  the  circumstances  are  such  that  it  is  apparent 
that  efforts  on  the  part  of  the  plaintiff  to  secure  such  action  as 
he  desires  by  the  directors  or  trustees  or  by  the  other  share- 
holders of  the  corporation  would  be  useless,  then  such  efforts  are 
unnecessary.  But  the  circumstances  manifesting  the  uselessness 
of  such  efforts  must  be  clearly  alleged.11 

Rule  94  expresses  primarily  the  conditions  which  must  pre- 
cede the  exercise  of  the  right  of  a  stockholder  to  protect  the  cor- 
poration, but  emergencies  may  arise  in  which  the  antagonism  be- 
tween the  directory  and  the  corporate  interests  may  be  unmis- 
takable and  the  requirements  of  the  rule  may  be  dispensed  with, 
or,  it  is  more  accurate  to  say,  do  not  apply.12 

By  the  addition  of  the  alternative  phrases,  Rule  27  is  made 
broad  enough  to  cover  all  cases  in  which  a  stockholder  may  bring 

"Doctor  v.  Harrington,  196  U.  S.  579,  49  L.  edi  606;   Delaware  &  H.  Co. 
v.  Albany  &  S.  R.  Co.  213  U.  S.  435,  53  L.  ed.  862. 
12  Delaware  &  H.  Co.  v.  Albany  &  8.  R.  Co.  supra. 


422         MONTGOMERY'S  MANUAL  or  FEDERAL  PROCEDURE     §  904 

a  suit  "founded  on  rights  which  may  properly  be  asserted  by 
the  corporation,"  and  conforms  to  the  law  as  declared  by  the 
cases  above  cited,  recognizing  that  there  may  be  reasons  which 
excuse  the  efforts  of  the  plaintiff  to  secure  action  by  the  directors 
or  stockholders. 

A  ful  land  unequivocal  compliance  with  the  requirements  of 
the  rule  is  necessary,18  and  the  absence  of  either  of  the  required 
allegations  constitutes  ground  for  a  motion  to  dismiss  the  bill.14 

§  903.  Same — Purposes  of  the  Rule.  The  purposes  of  the 
rule  are  obvious,  to  wit : 

1.  It   is   intended  to  preclude  persons  from  buying  stock  in 
corporation  for  the  purpose  of  extortion  by  litigation ;  hence  the 
requirement  of  the  allegation  that  the  plaintiff  was  a  shareholder 
at  the  time  of  the  transaction  of  which  he  complains,  or  that  his 
share  had  devolved  on  him  since  by  operation  of  law.15 

2.  The  purpose  of  the  clause  requiring  it  to  be  alleged  "that 
the   suit   is  not  a   collusive  one,   to   confer   on   a   court   of  the 
United    States   jurisdiction  of  a   cause   of  which   it  would   not 
otherwise  have  cognizance,"  is  "to  secure  the  Federal  court  from 
imposition  upon  the  jurisdiction."  16 

3.  The  remainder  of  the  rule,  requiring  that  the  bill  "set  forth 
with  particularity  the  efforts  of  the  plaintiff  to  secure  such  action 
as  he  desires,  on  the  part  of  the  managing  directors  or  trustees, 
and  if  necessary,  of  the  shareholders,  and  the  causes  of  his  failure 
to  obtain  such  action  or  the  reason  for  not  making  such  effort," 
recognizes  the  right  of  the  corporate  directory  to  corporate  con- 
trol, making  the  corporation  paramount  even  when  its  rights  are 
to  be  protected  or  sought  through  litigation.17 

§  904.  Amendments  of  Bill. 

As  of  course. 
Equity  Rule  28*    "The  plaintiff  may,  as  of  course,  amend 

13  Ziegler  v.  Lake  Street  Elev.  R.  R.  Co.  76  Fed.  662. 

14  Illinois  Central  R.  R.  Co.  v.  Adams,  180  U.  S.  28,  45  L.  ed.  410.     Equity 
Rule  29 ;  Venner  v.  Gt.  Northern  Ry.  Co.  153  Fed.  408. 

15  Robinson  v.  W.  Va.  Loan  Co.  90  Fed.  770,  772;   Dimpfel  v.  Ohio  &  M. 
Ry.  Co.  110  U.  S.  209,  28  L.  ed.  121. 

"  16  Delaware  &  H.  Co.  v.  Albany  &  S.  R.  Co.  213  U.  S.  435,  53  L.  ed.  862; 
Young  v.  Alhambra  Min.  Co.  71 'Fed.  810. 

n  Delaware  &  H.  R.  Co.  v.  Albany  &  S.  R.  Co.  supra. 

1  See  Equity  Rule  28,  with  Annotations,  in  Appendix,  post. 


§    904  THE  BILL  IN  EQUITY  423 

his  bill  before  the  defendant  has  responded  thereto,  but  if 
such  amendment  be  filed  after  any  copy  has  issued  from  the 
clerk's  office,  the  plaintiff  at  his  own  cost  shall  furnish  to 
the  solicitor  of  record  of  each  opposing  party  a  copy  of  the 
bill  as  amended,  unless  otherwise  ordered  by  the  court  or 
judge." 

Under  former  rule  the  plaintiff  was  permitted,  unless  the  amend- 
ments were  numerous,  to  furnish  copies  of  the  amendments  only, 
with  suitable  references  as  to  their  proper  places  of  insertion. 

For  purpose  and  scope  of  amendments,  see  Mellor  v.  Smith,  114 
Fed.  120,  §  954,  R.  S.,  and  Simkins'  "A  Federal  Equity  Suit," 
2d  ed.  page  353,  and  §§  905,  906,  976,  below. 
Not  as  of  course. 

If  the  plaintiff  fails  to  amend  before  the  defendant  files  his 
pleading  in  response  to  the  bill,  his  right  to  do  so  as  of  course  is 
gone,  and  he  must  then  obtain  the  consent  of  the  defendants  or 
leave  of  court  or  of  the  judge  before  his  amendment  can  be  effect- 
ive under  Rule  28. 

Equity  Rule  19*  "The  court  may  at  any  time,  in  fur- 
therance of  justice,  upon  such  terms  as  may  be  just,  permit 
any  process,  proceeding,  pleading  or  record  to  be  amended, 
or  material  supplemental  matter  to  be  set  forth  in  an  amend- 
ed or  supplemental  pleading.  The  court,  at  every  stage  of 
the  proceeding,  must  disregard  any  error  or  defect  in  the 
proceeding  which  does  not  affect  the  substantial  rights  of 
the  parties." 

Any  error  or  defect  in  the  bill  which  does  not  affect  the  sub- 
stantial right  of  party  will  be  disregarded  by  the  court  even  in 
the  absence  of  an  offer  to  amend. 

These  rules,  19  and  28,  covering  the  subject  of  amendments 
to  the  bill,  supplant  former  Equity  Rules  28,  29,  30,  45,  and  46, 
and  their  apparent  effect  is  to  greatly  broaden  the  power  of  the 
courts  in  permitting  amendments  at  any  or  all  stages  of  the  pro- 
ceeding. 

J  See  Equity  Rule  19,  with  Annotations,  in  Appendix,  post. 


MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  906 

An  examination  of  the  decisions  on  this  point  under  the  former 
rule,  however,  discloses  the  fact  that  the  courts  have  always  con- 
sidered that  the  power  of  a  court  of  equity  to  grant  amendments 
is  wholly  discretionary,  and  that  in  furtherance  of  justice  they 
will  not  consider  themselves  hampered  by  the  particular  rules  in 
court.  The  Federal  courts  have  always  been  guided  in  this  re- 
gard by  the  circumstances  of  the  particular  case,  and  Equity 
Rules  19  and  28,  seemingly  more  liberal  than  their  predecessors, 
are  in  reality  little  more  than  the  embodiment  of  the  law  as  it 
has  long  been  construed  by  the  court.18 

§  905.  Amendment — Where  Plaintiff  Fails  to  Set  Down 
for  Argument  Objection  in  Answer  for  Defect  of  Parties. 

Equity  Rule  ^-3.fc  "Where  the  defendant  shall  by  his 
answer  suggest  that  the  bill  of  complaint  is  defective  for 
want  of  parties,  the  plaintiff  may,  within  fourteer  days 
after  answer  filed,  set  down  the  cause  for  argument  as 
a  motion  upon  that  objection  only;  and  where  the  plaintiff 
shall  not  so  set  down  his  cause,  but  shall  proceed  therewith 
to  a  hearing,  notwithstanding  an  objection  for  want  of 
parties  taken  by  the  answer,  he  shall  not  at  the  hearing  of 
the  cause,  if  the  defendant's  objection  shall  then  be  allowed,, 
be  entitled  as  of  course  to  an  order  to  amend  his  bill  by  add- 
ing parties;  but  the  court  shall  be  at  liberty  to  dismiss  the 
bill,  or  to  allow  an  amendment  on  such  terms  as  justice  may 
require." 

§  906.  Amendment  on  Death  of  Party. 

Equity  Rule  45.1  "In  the  event  of  the  death  of  either 
party  the  court  may,  in  a  proper  case,  upon  motion,  order 
the  suit  to  be  revived  by  the  substitution  of  the  proper 
parties.  If  the  successors  or  representatives  of  the  de- 
ceased party  fail  to  make  such  application  writhin  a  reason- 
able time,  then  any  other  party  may,  on  motion,  apply  for 
such  relief,  and  the  court,  upon  any  such  motion,  may  take 
the  necessary  orders  for  notice  to  the  parties  to  be  substi- 

18  See  Simkins'  "A  Federal  Equity  Suit"   (2d  ed.)   pp.  355  to  360,  for  dis- 
cussion cases  cited  and  examples  of  discretionary  power  under  former  rules. 
fc  See  Equity  Rule  43,  with  Annotations,  in  Appendix,  post. 
1  See  Equity  Rule  45,  with  Annotations,  in  Appendix,  post. 


§    908  THE  BILL  IN  EQUITY  425 

tuted  arid  for  the  filing  of  such  pleadings  or  amendments  as 
may  be  necessary." 

§  907.  Supplemental  Pleading. 

Equity  Rule  34-m  "Upon  application  of  either  party,  the 
court  or  judge,  may,  upon  reasonable  notice  and  such  terms 
as  are  just,  permit  him  to  file  and  serve  a  supplemental 
pleading,  alleging  material  facts  occurring  after  his  former 
pleading,  or  of  which  he  was  ignorant  when  it  was  made, 
including  the  judgment  or  decree  of  a  competent  court  ren- 
dered after  the  commencement  of  the  suit,  determining  the 
matters  in  controversy  or  a  part  thereof." 

Eule  as  to  form  of  bills  of  revivor  and  supplemental. 

Equity  Rule  35.n  "It  shall  not  be  necessary  in  any 
bill  of  revivor  or  supplemental  bill  to  set  forth  any  of  the 
statements  in  the  original  suit,  unless  the  special  circum- 
stances of  the  case  may  require  it." 


§  908.  Parties. 

General  rule  and  as  to  intervention. 

Equity  Rule  37.°  Every  action  shall  be  prosecuted  in 
the  name  of  the  real  party  in  interest,  but  an  executor,  ad- 
ministrator, guardian,  trustee  of  an  express  trust,  a  party 
with  whom  or  in  whose  name  a  contract  has  been  made  for 
the  benefit  of  another,  or  a  party  expressly  authorized  by 
statute,  may  sue  in  his  own  name  without  joining  with  him 
the  party  for  whose  benefit  the  action  is  brought.  All  per- 
sons having  an  interest  in  the  subject  of  the  action  and  in 
obtaining  the  relief  demanded  may  join  as  plaintiffs,  and 
any  person  may  be  made  a  defendant  who  has  or  claims  an 
interest  adverse  to  the  plaintiff.  Any  person  may  at  any 
time  be  made  a  party  if  his  presence  is  necessary  or  prop- 
er to  a  complete  determination  of  the  cause.  Persons  hav- 
ing a  united  interest  must  be  joined  on  the  same  side  as 
plaintiffs  or  defendants,  but  when  any  one  refuses  to  join, 
he  may  for  such  reason  be  made  a  defendant. 

"Anyone  claiming  an  interest  in  the  litigation  may  at 
any  time  be  permitted  to  assert  his  right  by  intervention,  but 

m  See  Equity  Rule  34,  with  Annotations,  in  Appendix,  post. 
n  See  Equity  Rule  35,  with  Annotations,  in  Appendix,  post. 
«»  See  Equity  Rule  37,  with  Annotations,  in  Appendix,  post. 


426         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  908 

the  intervention  shall  be  in  subordination  to,  and  in  recog- 
nition of,  the  propriety  of  the  main  proceeding." 

Representatives  of  a  class. 

Equity  Rule  #&.p  "When  the  question  is  one  of  common 
or  general  interest  to  many  persons  constituting  a  class  so 
numerous  as  to  make  it  impracticable  to  brjng  them  all  be- 
fore the  court,  one  or  more  may  sue  or  defend  for  the  whole." 

Absence  of  persons  who  would  be  proper  parties. 

Equity  Rule  39.*  "In  all  cases  where  it  shall  appear  to 
the  court  that  persons,  who  might  otherwise  be  deemed  prop- 
er parties  to  the  suit,  cannot  be  made  parties  by  reason  of 
their  being  out  of  the  jurisdiction  of  the  court,  or  incapable 
otherwise  of  being  made  parties,  or  because  their  joinder 
would  oust  the  jurisdiction  of  the  court  as  to  the  parties  be- 
fore the  court,  the  court  may,  in  its  discretion,  proceed  in 
the  cause  without  making  such  persons  parties;  and  in  such 
cases  the  decree  shall  be  without  prejudice  to  the  rights  of 
the  absent  parties." 

Nominal  parties. 

Equity  Rule  40. r  "Where  no  account,  payment,  convey- 
ance, or  other  direct  relief  is  sought  against  a  party  to  a 
suit,  not  being  an  infant,  the  party,  upon  service  of  the  sub- 
poena upon  him,  need  not  appear  and  answer  the  bill  unless 
the  plaintiff  specially  requires  him  to  do  so  by  the  prayer; 
but  he  may  appear  and  answer  at  his  option ;  and  if  he  does 
not  appear  and  answer  he  shall  be  bound  by  all  the  proceed- 
ings in  the  cause.  If  the  plaintiff  shall  require  him  to  ap- 
pear and  answer  he  shall  be  entitled  to  the  costs  of  all  the 
proceedings  against  him  unless  the  court  shall  otherwise 
direct" 

Heir  as  party — suit  to  execute  trusts  of  will. 
Equity  Rule  Jfl*    "In  suits  to  execute  the  trusts  of  a  will 
it  shall  not  be  necessary  to  make  the  heir  at  law  a  party; 
but  the  plaintiff  shall  be  at  liberty  to  make  the  heir  at  law 

p  See  Equity  Rule  38,  with  Annotations,  in  Appendix,  post. 
«  See  Equity  Rule  39,  with  Annotations,  in  Appendix,  post. 

*  See  Equity  Rule  40,  with  Annotations,  in  Appendix,  post. 

•  See  Equity  Rule  41,  with  Annotations,  in  Appendix,  post. 


§    909  THE  BILL  IN  EQUITY  427 

a  party  if  he  desires  to  have  the  will  established  against 
him."  ' 

Saving  rights  of  absent  parties  where  defendant  makes  tardy  ob- 
jection. 

Equity  Rule  44*  "If  a  defendant  shall,  at  the  hearing 
of  a  cause,  object  that  a  suit  is  defective  for  want  of  parties, 
not  having  by  motion  or  answer  taken  the  objection  and  there- 
in specified  by  name  or  description  the  parties  to  whom  the 
objection  applies,  the  court  shall  be  at  liberty  to  make  a  de- 
cree saving  the  rights  of  the  absent  parties." 

§  909.  Joint  and  Several  Demands. 

Equity  Rule  4%™  "In  all  cases  in  which  the  plaintiff  has  a 
joint  and  several  demand  against  several  persons,  either  as 
principals  or  sureties,  it  shall  not  be  necessary  to  bring  before 
the  court  as  parties  to  a  suit  concerning  such  demand  all  the 
persons  liable  thereto;  but  the  plaintiff  may  proceed  against 
one  or  more  of  the  persons  severally  liable." 

t  See  Equity  Rule  44,  with  Annotations,  in  Appendix,  post. 
«  See  Equity  Rule  42,  with  Annotations,  in  Appendix,  post. 


CHAPTER    31. 

PROCESS  IN  EQUITY. 

Sec. 

010.  The  Summons  in  Equity  is  the  Subpoena. 

911.  Issue — Form — Return  of  Subpoena. 

912.  The  Precipe. 

913.  The  Subpoena. 

914.  Alias  Subpoenas. 

915.  Process  in  Behalf  of  and  against  Persons  Not  Parties. 

916.  Process  by  Whom  Served. 

917.  Manner  of  Sen-ing  Subpoenas. 

918.  Forms  of  Returns. 

919.  Form  of  Process  and  Return — How  Governed. 

§  910.  The  Summons  in  Equity  is  the  Subpoena. 

Equity  Rule  7.  "  The  process  of  subpoena  shall  constitute 
the  proper  mesne  process  in  all  suits  of  equity,  in  the  first 
instance,  to  require  the  defendant  to  appear  and  answer  the 
bill." 

§  911.  Issue — Form — Return  of  Subpoena. 

Equity  Rule  12*  "Whenever  a  bill  is  filed,  and  not  be- 
fore, the  clerk  shall  issue  the  process  of  subpoena  thereon,  as 
of  course,  upon  the  application  of  the  plaintiff,  which  shall 
contain  the  names  of  the  parties  and  be  returnable  into  the 
clerk's  office  twenty  days  from  the  issuing  thereof.  At  the 
bottom  of  the  subpoena  shall  be  placed  a  memorandum,  that 
the  defendant  is  required  to  file  his  answer  or  other  defense 
in  the  clerk's  office  on  or  before  the  twentieth  day  after  serv- 
ice, excluding-  the  day  thereof;  otherwise  the  bill  may  be 
taken  pro  confesso.  Where  there  are  more  than  one  defend- 
ant, a  writ  of  subpoena  may,  at  the  election  of  the  plaintiff, 
be  sued  out  separately  for  each  defendant,  or  a  joint  sub- 
poena against  all  the  defendants." 

a  See  Equitv  Rule  12,  with  Annotations,  in  Appendix,  post. 

428 


913  PROCESS  IN  EQUITY  429 


§  912.  The  Precipe.  The  "application  of  the  plaintiff"  men- 
tioned in  Rule  12  is  called  the  "precipe."  This  is  a  printed  form 
which  may  be  obtained  from  the  clerk.  The  following  form  is 
suggested : 

UNITED  STATES  OF  AMERICA. 

DISTRICT  COURT   OF  THE   UNITED   STATES,    DISTRICT 

OF   ,   DIVISION. 

]    CLERK'S  OFFICE 

—vs.—       (.  NO 

PRECIPE 


TO  THE  CLERK  OF  SAID  COURT,  SIR: 
Please    issue    . 


After   the  words   "please    issue"   there   may   be    inserted   the  following: — 
Subpo?na  for  the  defendants   (naming  them). 
Dated  . 


Attorney  for  Plaintiff. 


§  913.  The  Subpoena.  After  filing  of  the  bill  and  the  p  recipe, 
the  clerk  will  issue,  sign,  and  seal  a  subprena.  The  subpoena  is 
a  printed  form  entitled  in  the  court  from  which  it  issues,  and 
under  §  911,  E.  S.,  4  F.  S.  A.  p.  560,  it  is  in  the  name  of  the 
President  of  the  United  States  bearing  teste  of  the  judge  of  the 
district  court.  The  following  form  is  sufficient : 

UNITED  STATES  OF  AMERICA. 

DISTRICT   COURT   OF   THE   UNITED    STATES, DISTRICT 

OF    ,    DIVISION. 

' 

IN  EQUITY. 

THE  PRESIDENT  OF  THE  UNITED  STATES  OF  AMERICA  GREETING. 

TO    : 

You  are  hereby  commanded  to  appear  in  said  District  Court  of  the  United 
States  aforesaid  within  the  time  specified  in  the  memorandum  below  to 


430         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  915 

file  your  answer  or  other  defense  to  a  bill  of  complaint  exhibited  against 

you  in  said  Court  by    who   citizen  of  the 

and  to  do  and  receive  what  the  court  shall  have  considered  in 

that  behalf.     And  this  you  are  not  to  omit  under  penalty  of  Five  Thousand 
Dollars. 

WITNESS  the  Honorable   District  Judge  of  said  Court  this 

day  of  in  the  year  of  our  Lord  One  Thousand 

Nine  Hundred and  of  our  Independence,  One  Hundred  and   


Clerk. 
By   .... 


Deputy  Clerk. 

Memorandum  pursuant  to  Equity  Rule  12. 

You  are  hereby  required  to  file  your  answer  or  other  defense  in  the 
above  suit  in  the  Clerk's  office  of  said  Court  pursuant  to  said  bill,  on  or 
before  the  20th  day  after  service  hereof  upon  you,  excluding  the  day  thereof, 
otherwise  the  said  bill  will  be  taken  pro  confesso. 


Clerk. 


Deputy  Clerk. 

§  914.  Alias  Subpoenas.  Inasmuch  as  the  subpoena  is  re- 
turnable into  the  clerk's  office  twenty  days  from  the  issuing  there- 
of, it  will  frequently  happen  that  there  will  be  a  failure  to  serve 
within  the  time  in  which  the  subpoena  must  be  returned.  If  serv- 
ice be  not  made  within  the  time  limited  an  alias  subpoena  may 
issue. 

Equity  Rule  IJf..  "Whenever  any  subpoena  shall  be  re- 
turned not  executed  as  to  any  defendant,  the  plaintiff  shall 
be  entitled  to  other  subpoenas  against  such  defendant,  until 
due  service  is  made." 

§  915.  Process  in  Behalf  of  and  against  Persons  Not  Par- 
ties. 

Equity  Rule  11*  "Every  person,  not  being  a  party  in 
any  cause,  who  has  obtained  an  order,  or  in  whose  favor  an 

*  See  Equity  Rule  11,  with  Annotations,  in  Appendix,  post. 


§  918  PROCESS  IN  EQUITY  431 

order  shall  have  been  made,  may  enforce  obedience  to  such 
order  by  the  same  process  as  if  he  were  a  party;  and  every 
person,  not  being  a  party,  against  whom  obedience  to  any  or- 
der of  the  court  may  be  enforced,  shall  be  liable  to  the  same 
process  for  enforcing  obedience  to  such  orders  as  if  he  were 
a  party." 

§  916.  Process  by  Whom  Served. 

Equity  Rule  15.c  "The  service  of  all  process,  mesne  and 
final,  shall  be  by  the  marshal  of  the  district,  or  his  deputy, 
or  by  some  other  person  especially  appointed  by  the  court 
or  judge  for  that  purpose,  and  not  otherwise.  In  the  latter 
case,  the  person  serving  the  process  shall  make  affidavit  there- 
of." 

§  917.  Manner  of  Serving  Subpoenas. 

Equity  Rule  13.A  "The  service  of  all  subpoenas  shall  be 
by  delivering  a  copy  thereof  to  the  defendant  personally,  or 
by  leaving  a  copy  thereof  at  the  dwelling  house  or  usual  place 
of  abode  of  each  defendant,  with  some  adult  person  who  is 
a  member  of  or  resident  in  the  family." 

§  918.  Forms  of  Returns.  In  the  event  that  the  service  is 
made  on  the  defendant  personally,  the  marshal's  certificate  may  be 
in  the  following  form : 

UNITED  STATES  MARSHAL'S  OFFICE 

DISTRICT  OF 

I  HEREBY  CERTIFY  that  I  received  the  within  writ  on  the   day 

of   ,  and  personally  served  the  same  on  and  by  delivering  to  and 

leaving  with and said  defendants  named  therein, 

personally,  at  the  County  of   in  said  District  a  copy  thereof 




United  States  Marshal. 

By  

Deputy. 
Dated   at    19 ... 

c  See  Equity  Rule  15,  with  Annotations,  in  Appendix,  post. 
d  See  Equity  Rule  13,  with  Annotations,  in  Appendix,  post. 


432          MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  !)1'J 

If  someone  other  than  the  marshal  or  his  deputy  make  service 
his  affidavit  should  be  in  form  somewhat  as  follows  for  personal 
service : 


STATE  OF   . 
COUNTY  OF 


being  first  duly  sworn  on  oath  says :     That  on  the 

day  of 19 . . ,  he  personally  served  same  on   and 

by  delivering  to  and  leaving  with and  

said    defendant    named    therein    personally    in   the    County    of 

in  the  said  District,  a  copy  thereof 


Subscribed  and  sworn  to  before  me 
this day  of 1913. 

(Seal) 

(Official  Designation.) 

In  the  event  that  the  service  is  not  made  on  the  defendant  per- 
sonally, but  by  substituted  service  authorized  in  the  above-quoted 
Equity  Rule  13,  the  marshal's  return  or  the  affidavit  of  service 
as  the  case  may  be  should  show  this  fact  by  reciting  that  he  per- 
sonally served  the  writ  on  the  defendants  named  "by  leaving  a 
copy  thereof  at  the  dwelling  house  (or  if  the  defendant  has  no 
dwelling  house  then  state  'at  the  usual  place  of  abode')  of  the 
defendant  with  ...  an  adult  person  who  is  a  member  of  (or 
if  not  a  member  state  'who  is  a  resident  in')  the  family." 

§  919.  Form  of  Process  and  Return — How  Governed. 

§  913,  R.  8,,  Comp.  St.  1901,  p.  683,  4  F.  S.  A.  586, 
"The  forms  of  mesne  process  and  the  forms  and  modes  of 
proceeding  in  suits  of  equity  and  of  admiralty  and  maritime 
jurisdiction  in  the  circuit  and  district  courts  shall  be  accord- 
ing to  the  principles,  rules,  and  usages  which  belong  to  courts 
of  equity  and  of  admiralty,  respectively,  except  when  it  is 
otherwise  provided  by  statute  or  by  rules  of  court  made  ii; 
pursuance  thereof;  but  the  same  shall  be  subject  to  altera- 
tion and  addition  by  the  said  courts,  respectively,  and  to 
regulation  by  the  Supreme  Court,  by  rules  prescribed,  from 


919  PROCESS  IN  EQUITY  433 

time  to  time,  to  any  circuit  or  district  court,  not  inconsis- 
tent with  the  laws  of  the  United  States." 

§  922,  R.  8.,  Comp.  St.  1901,  p.  686,  j.  F.  8.  A.  588. 
"When  the  marshal  or  his  deputy  is  a  party  in  any  cause,  the 
writs  and  precepts  therein  shall  be  directed  to  such  disin- 
terested person  as  the  court  or  any  justice  or  judge  thereof 
may  appoint,  and  the  person  so  appointed  may  execute  and 
return  them." 

Montg.— 28. 


CIIAPTEK    32. 

DECREE  PRO   CONFESSO. 

Sec. 

930.  Time  for  Defensive  Pleading  Twenty   Days  after  Seivice  of  Subpoena. 

931.  Default  When  Taken. 

932.  Pleading  Required  to  Save  from  Decree  pro  Confesso. 

933.  Motion   to   Dismiss  on   Point   of  Law. 

934.  Motion  to  Make  More  Definite  and  Certain. 

935.  Motion    to    Strike   Redundant,    Impertinent,    or   Scandalous    Matter. 

936.  Motion   to  Transfer  Action  to  Law   Side. 

937.  Decree  pro  Confesso  When  Made  Final. 

§  930.  Time  for  Defensive  Pleading  Twenty  Days  after 
Service  of  Subpoena. 

Equity  Rule  12*  ".  .  .  At  the  bottom  of  the  subpoena 
shall  be  placed  a  memorandum,  that  the  defendant  is  re- 
quired to  file  his  answer  or  other  defense  in  the  clerk's  of- 
fice on  or  before  the  twentieth  day  after  service,  excluding 
the  day  thereof ;  otherwise  the  bill  may  be  taken  pro  confesso. 


But  the  time  above  mentioned  under  Rule  16  may  be  enlarged 
"for  cause  shown  by  a  judge  of  the  court."  Rules  12  and  16 
should  be  read  together. 

§  931.  Default  When  Taken. 

Equity  Rule  16*  "It  shall  be  the  duty  of  the  defendant, 
unless  the  time  shall  be  enlarged,  for  cause  shown,  by  a  judge 
of  the  court,  to  file  his  answer  or  other  defense  to  the  bill 
in  the  clerk's  office  within  the  time  named  in  the  subpoena  as 
required  by  Rule  12.  In  default  thereof  the  plaintiff  may, 
at  his  election,  take  an  order  as  of  course  that  the  bill  be 
taken  pro  confesso ;  and  thereupon  the  cause  shall  be  pro- 
ceeded in  ex  parte." 

a  See  Equity  Rule  12,  with  Annotations,  in  Appendix,  post. 
t>  See  Equity  Rule  16,  with  Annotations,  in  Appendix,  post. 

434 


§  932  DECREE  PEG  CONFESSO  •  435 

§  932.  Pleading  Required  to  Save  from  Decree  pro  Con- 
fesso.  In  order  to  save  from  default,  the  defendant,  under  Rule 
16,  "unless  the  time  shall  be  enlarged  for  cause  shown,  by  a  judge 
of  the  court,"  is  required  "to  file  his  answer  on  other  defense  to 
the  bill  in  the  clerk's  office  within  the  time  named  in  the  subpoena, 
as  required  by  Rule  12,"  to  wit,  "on  or  before  the  twentieth  day 
after  service,  excluding  the  day  thereof ;  otherwise  the  bill  may  be 
taken  pro  confesso." 

What  is  such  "other  defense"  as  will  save  a  defendant  from  the 
taking  of  the  bill  against  him  pro  confesso  ? 

To  avoid  confusion  it  must  be  remembered  that  the  state  rules 
as  to  pleadings  do  not  apply  to  Federal  equity  suits,  but  the  Fed- 
eral equity  rules  and  decisions  wholly  determine  the  procedure, 
time,  order,  and  manner  of  pleading.  Hence  the  filing  of  a  writ- 
ten appearance,  a  motion  for  security  for  costs,  a  demurrer,  a  plea, 
or  any  other  defensive  pleading  not  authorized  by  the  Federal 
equity  rules,  would  not  be  sufficient  to  save  from  default  in  a  Fed- 
eral equity  suit  even  though  sufficient  in  a  similar  suit  in  the  state 
courts  under  the  state  practice  of  the  state  wherein  the  Federal 
court  may  be  located. 

Under  the  new  rules  in  force  February  1,  1913,  the  following 
would  seem  to  come  under  the  term  "other  defense,"  which  would 
save  from  default:  (1)  A  special  appearance  by  motion  to  quash 
the  process  on  some  jurisdictional  ground;1  (2)  under  Rule  29, 
motion  to  dismiss  on  certain  points  of  law  arising  upon  the  face 
of  the  bill;2  (3)  under  Rule  20  a  motion  makes  more  definite  and 
certain;8  (4)  under  Rule  21  a  motion  to  strike  redundant,  imper- 
tinent, or  scandalous  matter;4  (5)  under  Rule  22  a  motion  to 
transfer  to  the  law  side  an  action  at  law  erroneously  begun  as  a 
suit  in  equity.5  It  is,  however,  not  certain  that  anything  other 
than  a  motion  to  dismiss  is  intended  by  the  term  "other  defense," 
as  there  is  no  time  designated  for  filing  answer  except  after  over- 
ruling any  other  motion  than  a  motion  to  dismiss  or  after  filing  an 
amended  bill.6 

1  See  chapter  31,  on  "Process— Equity  Suits."  *  §  933,  post. 

8  §  934,  post.  *  §  935,  post.  %  5  §  936,  post. 

6§§  867,   868,   supra. 


436         MONTGOMERY'S  MAXTAL  OF  FEDERAL  PROCEDURE     §  936 

§  933.  Motion  to  Dismiss  on  Point  of  Law. 

Pt.  Equity  Rule  29.v  ''Every  defense  in  point  of  law  aris- 
ing upon  the  face  of  the  bill,  whether  for  misjoinder,  non- 
joinder, or  insufficiency  of  fact  to  constitute  a  valid  cause  of 
action  in  equity,  which  might  heretofore  have  been  made  by 
demurrer,  or  plea,  shall  be  made  by  motion  to  dismiss  or  in 
the  answer."  .  .  .  "If  the  defendant  move  to  dismiss  the 
bill  or  any  part  thereof,  the  motion  may  be  set  down  for  hear- 
ing by  either  party  upon  five  days'  notice,  and,  if  it  be  denied, 
answer  shall  be  filed  within  five  days  thereafter  or  a  decree 
pro  confesso  entered." 

§  934.  Motion  to  Make  More  Definite  and  Certain. 

Equity  Rule  20.A  "Further  and  particular  statement  in 
pleading  may  be  required.  A  further  and  better  statement 
of  the  nature  of  the  claim  or  defense,  or  further  and  better 
particulars  of  any  matter  stated  in  any  pleading,  may  in 
any  case  be  ordered,  upon  such  terms,  as  to  costs  and  other- 
wise, as  may  be  just." 

§  935.  Motion  to  Strike  Redundant,  Impertinent,  or  Scan- 
dalous Matter. 

Equity  Rule  21  *  "Scandal  and  impertinence.  The  right 
to  except  to  bills,  answers,  and  other  proceedings  for  scandal 
or  impertinence  shall  not  obtain,  but  the  court  may,  upon 
motion  or  its  own  initiative,  order  any  redundant,  imperti- 
nent, or  scandalous  matter  stricken  out,  upon  such  terms  as 
the  court  shall  think  fit." 

§  936.  Motion  to  Transfer  Action  to  Law  Side. 

Equity  Rule  22*  "Action  at  law  erroneously  begun  as 
suit  in  equity — transfer.  If  at  any  time  it  appear  that  a 
suit  commenced  in  equity  should  have  been  brought  as  an 
action  on  the  law  side  of  the  court,  it  shall  be  forthwith  trans- 
ferred to  the  law  side  and  be  there  proceeded  with,  with 
only  such  alteration  in  the  pleadings  as  shall  be  essential." 

c  See  Equity  Rule  29,  with  Annotations,  in  Appendix,  post. 
«1  See  Equity  Rule  20,  with  Annotations,  in  Appendix,  post. 
«•  See  Equity  Rule  21,  with  Annotations,  in  Appendix,  post. 
*  See  Equity  Rule  22,  with  Annotations,  in  Appendix,  post. 


§  937  DECKEE  PRO  CONFESSO  487 

§  937.  Decree  pro  Confesso  When  Made  Final. 

Equity  Rule  17. K  "Decree  pro  confesso  to  be  followed 
by  final  decree — setting  aside  default.  When  the  bill  is  taken 
pro  confesso  the  court  may  proceed  to  a  final  decree  at  any 
time  after  the  expiration  of  thirty  days  after  the  entry  of 
the  order  pro  confesso,  and  such  decree  shall  be  deemed  ab- 
solute unless  the  court  shall,  at  the  same  term,  set  aside  the 
same,  or  enlarge  the  time  for  filing  the  answer,  upon  cause 
shown  upon  -motion  and  affidavit.  No  such  motion  shall  be 
granted,  unless  upon  the  payment  of  the  costs  of  the  plain- 
tiff up  to  that  time,  or  such  part  thereof  as  the  court  shall 
deem  reasonable,  and  unless  the  defendant  shall  undertake 
to  file  his  answer  within  such  time  as  the  court  shall  direct, 
and  submit  to  such  other  terms  as  the  court  shall  direct,  for 
the  purpose  of  speeding  the  cause." 

e  See  Equity  Rule  17,  with  Annotations,  in  Appendix,  post. 


CHAPTEK  33. 

DEFENSIVE   PLEADINGS— EQUITY. 

Sec. 

950.  Kinds  of  Defensive  Pleading. 

951.  Motion  Day. 

952.  Notices. 

953.  Motions  Grantable  of  Course. 

954.  To  Obtain  Better  Statement  and  Particulars. 

955.  To  Remove  Redundant,  Scandalous,  or  Impertinent  Matter. 

956.  Defense  in  Point  of  Law. 

957.  Defect  of  Parties. 

958.  Notice  of  Orders. 

§  950.  Kinds  of  Defensive  Pleading.  Under  Equity  Rule  29 
demurrers  and  pleas  are  abolished,1  and  under  Equity  Rule  21 
the  right  to  except  to  bills  and  other  proceedings  for  scandal  or 
impertinence  shall  not  obtain.2  The  old  forms  have  evidently  been 
abandoned  so  that  the  new  proceedings  will  not  be  confused  by 
them.  The  new  wine  is  not  put  in  the  old  bottles.  All  defenses 
are  made  either  by  motions  or  in  the  answer,  and  all  issues  not 
requiring  trial  of  the  principal  case  may  be  determined  on  short 
notice  before  the  trial. 

§  951.  Motion  Day. 

Equity  Rule  6*  "Each  district  court  shall  establish  reg- 
ular times  and  places,  not  less  than  once  each  month,  when 
motions  requiring  notice  and  hearing  may  be  made  and  dis- 
posed of;  but  the  judge  may  at  any  time  and  place,  and  on 
such  notice,  if  any,  as  he  may  consider  reasonable,  make 
and  direct  all  interlocutory  orders,  rulings  and  proceedings 
for  the  advancement,  conduct  and  hearing  of  causes.  If 
the  public  interest  permits,  the  senior  circuit  judge  of  the 

1  §  956,  post.  2  §  955,  post. 

a  See  Equitv  Rule  6,  with  Annotations,  in  Appendix,  post. 

438 


§    953  DEFENSIVE  PLEADINGS EQUITY  439 

circuit  may  dispense  with  the  motion  day  during  not  to 
exceed  two  months  in  the  year  in  any  district." 

§  952.  Notices. 

2d  paragraph  Equity  Rule  1*  ".  .  .  Any  district 
judge  may,  upon  reasonable  notice  to  the  parties,  make,  di- 
rect, and  award,  at  chambers  or  in  the  clerk's  office,  and  in 
vacation  as  well  as  in  term,  all  such  process,  commissions, 
orders,  rules,  and  other  proceedings,  whenever  the  same 
are  not  grantable  of  course,  according  to  the  rules  and  prac- 
tice of  the  court." 

Pt.  Equity  Rule  6.c  ".  .  .  but  the  judge  may  at  any  time 
and  place,  and  on  such  notice,  if  any,  as  he  may  consider 
reasonable,  make  and  direct  all  interlocutory  orders,  rulings, 
and  proceedings  for  the  advancement,  conduct,  and  hearing 
of  causes." 

Pt.  Equity  Ruk  29. d  ".  .  .  If  the  defendant  move  to 
dismiss  the  bill  or  any  part  thereof,  the  motion  may  be  set 
down  for  hearing  by  either  party  upon  five  days'  notice,  and, 
if  it  be  denied,  answer  shall  be  filed  within  five  days  there- 
after or  a  decree  pro  confesso  entered." 

Pt.  Equity  Rule  73.e  ".  .  .  Upon  two  days'  notice 
to  enforce  and  execute  decrees;  for  taking  bills  pro  confesso; 
opposite  party  may  appear  and  move  the  dissolution  or 
modification  of  the  order,  and  in  that  event  the  court  or 
judge  shall  proceed  to  hear  and  determine  the  motion  as 
expeditiously  as  the  ends  of  justice  may  require.  .  .  ." 

Under  Equity  Rule  33  the  plaintiff  on  five  days'  notice,  or  such 
further  time  as  the  court  may  allow,  tests  the  sufficiency  of  an 
affirmative  defense  in  the  answer  by  a  motion  to  strike  out. 

§  953.  Motions  Grantable  of  Course. 

Equity  Rule  5*  "All  motions  and  applications  in  the 
clerk's  office  for  the  issuing  of  mesne  process  or  final  process 

b  See  Equity  Rule  1,  with  Annotations,  in  Appendix,  post. 
c  See  Equity  Rule  6,  with  Annotations,  in  Appendix,  post. 
d  See  Equity  Rule  29,  with  Annotations,  in  Appendix,  post. 
e  See  Equity  Rule  73,  with  Annotations,  in  Appendix,  post. 
*  See  Equity  Rule  5,  with  Annotations,  in  Appendix,  post. 


440         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  956 

to  enforce  and  execute  decrees;  for  taking  bills  pro  confesso; 
and  for  other  proceedings  in  the  clerk's  office  which  do  not 
require  any  allowance  or  order  of  the  court  or  of  a  judge, 
shall  be  deemed  motions  and  applications  grantable  of  course 
by  the  clerk;  but  the  same  may  be  suspended  or  altered  or 
rescinded  by  the  judge  upon  special  cause  shown." 

§  954.  To  Obtain  Better  Statement  and  Particulars. 

Equity  Rule  20.s  "A  further  and  better  statement  of  the 
nature  of  the  claim  or  defense,  or  further  and  better  particu- 
lars of  any  matter  stated  in  any  pleading,  may  in  anv  cnse 
be  ordered,  upon  such  terms,  as  to  costs  and  otherwise,  as 
may  be  just." 

§  955.  To  Remove  Redundant,  Scandalous,  or  Imperti- 
nent Matter. 

Equity  Rule  21. ,h  "The  right  to  except  to  bills,  answers, 
and  other  proceedings  for  scandal  or  impertinence  shall  not 
obtain,  but  the  court  may,  upon  motion  or  its  own  initiative, 
order  any  redundant,  impertinent  or  scandalous  matter  strick- 
en out,  upon  such  terms  as  the  court  shall  think  fit." 

§  956.  Defense  in  Point  of  Law. 

Equity  Rule  29.1  "Demurrers  and  pleas  are  abolished. 
Every  defense  in  point  of  law  arising  upon  the  face  of  the 
bill,  whether  for  misjoinder,  nonjoinder,  or  insufficiency  of 
fact  to  constitute  a  valid  cause  of  action  in  equity,  which 
might  heretofore  have  been  made  by  demurrer  or  plea,  shall 
be  made  by  motion  to  dismiss  or  in  the  answer;  and  every 
such  point  of  law  going  to  the  whole  or  a  material  part  of  the 
cause  or  causes  of  action  stated  in  the  bill  may  be  called  up 
and  disposed  of  before  final  hearing  at  the  discretion  of  the 
court.  Every  defense  heretofore  presentable  by  plea  in  bar  or 
abatement  shall  be  made  in  the  answer  and  may  be  separately 
heard  and  disposed  of  before  the  trial  of  the  principal  case 
in  the  discretion  of  the  court.  If  the  defendant  move  to  dis- 
miss the  bill  or  any  part  thereof,  the  motion  may  be  set  down 
for  hearing  by  either  party  upon  five  days'  notice,  and,  if 
it  be  denied,  answer  shall  be  filed  within  five  days  thereafter 
or  a  decree  pro  confesso  entered." 

K  See  Equity  Rule  20,  with  Annotations,  in  Appendix,  post. 
1»  See  Equity  Rule  21,  with  Annotations,  in  Appendix,  post. 
*  See  Equity  Rule  29,  with  Annotations,  in  Appendix,  post. 


§  958  DEFENSIVE  PLEADINGS EQUITY  441 

§  957.  Defect  of  Parties. 

Equity  Rule  48*  "Where  the  defendant  shall  by  his  an- 
swer suggest  that  the  bill  of  complaint  is  defective  for  want 
of  parties,  the  plaintiff  may,  within  fourteen  days  after 
answer  filed,  set  down  the  cause  for  argument  as  a  motion 
upon  that  objection  only;  and  where  the  plaintiff  shall  not 
so  set  down  his  cause,  but  shall  proceed  therewith  to  a  hear- 
ing, notwithstanding  an  objection  for  want  of  parties  taken 
by  the  answer,  he  shall  not  at  the  hearing  of  the  cause,  if  the 
defendant's  objection  shall  then  be  allowed,  be  entitled  as 
of  course  to  an  order  to  amend  his  bill  by  adding  parties ;  but 
the  court  shall  be  at  liberty  to  dismiss  the  bill,  or  to  allow  an 
amendment  on  such  terms  as  justice  may  require/' 

Equity  Rule  44-^  "If  a  defendant  shall,  at  the  hearing 
of  a  cause,  object  that  a  suit  is  defective  for  want  of  parties, 
not  having  by  motion  or  answer  taken  the  objection  and 
therein  specified  by  name  or  description  the  parties  to  whom 
the  objection  applies,  the  court  shall  be  at  liberty  to  make 
a  decree  saving  the  rights  of  the  absent  parties." 

§  958.  Notice  of  Orders. 

Equity  Rule  4-1  •  "Neither  the  noting  of  an  order  in  the 
equity  docket  nor  its  entry  in  the  order  book  shall  of  itself 
be  deemed  notice  to  the  parties  or  their  solicitors ;  and  when 
an  order  is  made  without  prior  notice  to,  and  in  the  absence 
of,  a  party,  the  clerk,  unless  otherwise  directed  by  the  court 
or  judge,  shall  forthwith  send  a  copy  thereof,  by  mail,  to 
such  party  or  his  solicitor  and  a  note  of  such  mailing  shall 
be  made  in  the  equity  docket,  which  shall  be  taken  as  suffi- 
cient proof  of  due  notice  of  the  order." 

J  See  Equity  Rule  43,  with  Annotations,  in  Appendix,  post. 
k  See  Equity  Rule  44,  with  Annotations,  in  Appendix,  post. 
1  See  Equity  Rule  4,  with  Annotations,  in  Appendix,  post. 


CHAPTER  34. 

THE   ANSWER— EQUITY  SUITS. 

Sec. 

970.  General  Statement. 

971.  Answer  as  Such  Is  Not  Evidence. 

972.  Time  for  Answer. 

973.  Contents  of  Answer. 

974.  Form  of  Answer. 

975.  Discovery. 

976.  Amendments. 

977.  Supplemental  Answer. 

978.  Attacks  upon  Answer. 

979.  Reply — When  Required — When  Cause  at  Issue. 

980.  Counterclaim  and  Set-off. 

981.  Set-off    or    Counterclaim    Subject    of    Independent    Equity   Suit    against 

Plaintiff. 

982.  Cross  Bill  not  Provided  for  in  Rules. 

983.  Effect  of  Failure  to  Plead  Counterclaim  or  Set-off. 

§  970.  General  Statement.  The  similarity  of  the  provisions 
of  the  new  equity  rules  that  took  effect  February  1,  1913,  to  the 
Code  provisions  of  the  several  states  that  have  adopted  the  reform 
procedure,  is  especially  marked  with  respect  to  the  answer  in 
equity.  Under  Rule  18  technical  forms  of  pleading  are  abolished. 
Under  Rule  29,  defenses  formerly  presentable  by  pleas  or  de- 
murrers must  be  contained  in  the  answer,  though  they  may  be 
separately  heard.  Rule  30  provides  for  specific  denials,  denials 
on  lack  of  knowledge,  admission  of  averments  not  denied,  amend- 
ments on  notice  when  justice  requires  and  allows  inconsistent 
defenses,  set-offs,  and  counterclaims  in  the  answer. 

Differences  from  state  practice : 

1.  Point  of  law  formerly  raised  by  demurrer  or  plea  may  be 
set  out  in  answer. 

442 


§    972  THE    ANSWER EQUITY    SUITS  443 

2.  Counterclaim  covers  matters  pleaded  in  state  courts  by  cross 
bill  or  cross  complaint. 

3.  No  general  denial. 

4.  No  verification  unless  special  relief  pending  suit  sought. 

§  971.  Answer  as  Such  Is  Not  Evidence.  The  answer  is 
no  longer  evidence,  except  possibly  as  containing  admissions  on 
the  part  of  the  defendant. 

Under  the  old  chancery  practice  the  answer  was  considered  as 
evidence  because  the  testimony  of  a  party  was  not  admissible  on 
the  ground  that  interest  made  him  incompetent,  The  reason  for 
making  the  answer  evidence  disappeared  with  the  change  of  prac- 
tice authorized  by  §  858,  R.  S.,  Comp.  Stat.  1901,  page  859,  7 
F.  S.  A.  p.  1116,  providing  that  "in  the  courts  of  the  United  States 
no  witness  shall  be  excluded  in  any  action  .  .  .  because  he  is 
a  party  to  or  interested  in  the  issues  tried." 

The  new  rules  conform  to  the  present  conditions,  the  revision 
omitting  or  changing  all  that  existed  in  the  old  rules  supporting 
the  proposition.  Thus  old  Equity  Rule  59,  providing  for  verifica- 
tion of  the  answer,  has  been  superseded  by  new  Rule  30,  which 
provides  for  the  verification  of  "every  pleading  which  is  required 
to  be  sworn  to  by  statute,  or  these  rules." 

Old  Equity  Rule  41.  "Answer,  when  not  evidence,"  is  not  con- 
tained in  the  new  rules.  So,  also,  there  has  been  omitted  from  the 
revision  old  Rules  42,  43,  and  44,  relating  to  answering  interroga- 
tories contained  in  the  bill.  New  Equity  Rule  58  is  the  only 
relic  of  the  old  chancery  practice  requiring  defendants  to  answer 
under  oath. 

The  answer  could  not  be  evidence  under  the  new  rules,  as  Equity 
Rule  30  provides:  "The  answer  may  state  as  many  defenses,  in 
the  alternative,  regardless  of  consistency,  as  the  defendant  deems 
essential  to  his  defense."  In  the  event  of  pleading  of  inconsistent 
defenses,  if  the  answer  were  evidence,  there  would  be  a  conflict  of 
evidence. 

§  972.  Time  for  Answer.  Unless  the  defendant  files  wi'th- 
in  twenty  days  after  service  of  the  subpoena  some  "other  defense" 


444         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  973 

as  permitted  by  Equity  Rules  12  and  16,  or  "unless  the  time  shall 
he  enlarged  for  cause  shown,  by  a  judge  of  the  court"  under  Rule 
16,  it  is  the  duty  of  the  defendant  to  file  an  answer. 

Under  Rule  29,  "if  the  defendant  move  to  dismiss  the  bill  or 
any  part  thereof,  the  motion  may  be  set  down  for  hearing  by 
either  party  upon  five  days'  notice,  and,  if  it  be  denied,  answer 
shall  be  filed  within  five  days  thereafter,  or  a  decree  pro  co-nfesso 
entered. 

Equity  Rule  32  provides  for  the  answer  to  amended  bill  as 
follows:  "In  every  case  where  an  amendment  to  the  bill  shall  be 
made  after  answer  filed,  the  defendant  shall  put  in  a  new  or  supple- 
mental answer  within  ten  days  after  that  on  which  the  amendment 
or  amended  bill  is  filed,  unless  the  time  is  enlarged  or  otherwise 
ordered  by  a  judge  of  the  court;  and  upon  his  default,  the  like 
proceedings  may  be  had  as  a  case  of  an  omission  to  put  in  an 
answer." 

§  973.  Contents  of  Answer. 

Pi.  Rule  29*  "Every  defense  in  point  of  law  arising  up- 
on the  face  of  the  bill,  whether  for  misjoinder,  nonjoinder,  or 
insufficiency  of  fact  to  constitute  a  valid  cause  of  action  in 
equity  which  might  heretofore  have  been  made  by  demurrer 
or  plea,  shall  be  made  by  motion  to  dismiss  or  in  the  answer. 
Every  defense  heretofore  presentable  by  plea  in  bar 
or  abatement  shall  be  made  in  the  answer,  and  may  be  sepa- 
rately heard  and  disposed  of  before  the  trial  of  the  principal 
case  in  the  discretion  of  the  court." 

Equity  Rule  30*  Answer — contents — counterclaim. 
"The  defendant  in  his  answer  shall  in  short  and  simple 
terms  set  out  his  defense  to  each  claim  asserted  by  the  bill, 
omitting  any  mere  statement  of  evidence  and  avoiding  any 
general  denial  of  the  averments  of  the  bill,  but  specifically 
admitting  or  denying  or  explaining  the  facts  upon  which 
the  plaintiff  relies,  unless  the  defendant  is  without  knowledge, 
in  which  case  he  shall  so  state,  such  statement  operating 
as  a  denial.  Averments  other  than  of  value  or  amount  of 
damage,  if  not  denied,  shall  be  deemed  confessed,  except 

««  See  Equity  Rule  29,  with  Annotations,  in  Appendix,  post. 
*»  See  Equity  Rule  30,  with  Annotations,  in  Appendix,  post. 


§    974  THE    ANSWEK EQUITY    SUITS  44:5 

as  against  an  infant,  lunatic,  or  other  person  non  compos 
and  not  under  guardianship.  The  answer  may  be  amended, 
by  leave  of  the  court  or  judge,  upon  reasonable  notice,  so 
as  to  put  any  averment  in  issue,  when  justice  requires  it. 
The  answer  may  state  as  many  defenses,  in  the  alternative, 
regardless  of  consistency,  as  the  defendant  deems  essential 
to  his  defense. 

"The  answer  must  state  in  short  and  simple  form  any 
counterclaim  arising  out  of  the  transaction  which  is  the 
subject-matter  of  the  suit,  and  may,  without  cross  bill,  set 
out  any  set-off  or  counterclaim  against  the  plaintiff  which 
might  be  the  subject  of  an  independent  suit  in  equity  against 
him,  and  such  set-off  or  counterclaim,  so  set  up,  shall  have 
the  same  effect  as  a  cross  suit,  so  as  to  enable  the  court  to 
pronounce  a  final  judgment  in  the  same  suit  both  on  the 
original  and  cross  claims." 

§  974.  Form  of  Answer.  Equity  Rule  18  c  provides:  "Un- 
less otherwise  prescribed  by  statute  or  these  rules,  the  technical 
forms  of  pleading  in  equity  are  abolished."  Under  Equity  Rule 
24,  the  answer  is  required  to  be  "signed  individually  by  one  or 
more  solicitors  of  record,  and  such  signatures  shall  be  considered 
as  a  certificate  by  each  solicitor  that  he  has  read  the  pleading  so 
signed  by  him ;  that  upon  the  instruction  laid  before  him  regarding 
the  case  there  is  good  ground  for  the  same ;  that  no  scandalous  mat- 
ter is  inserted  in  the  pleading;  and  that  it  is  not  interposed  for 
delay."  There  is  no  provision  as  to  verification,  but  undoubtedly 
if  the  answer  contains  a  counterclaim  or  set-off  which  seeks  special 
relief  pending  the  suit,  the  counterclaim  or  set-off  should  be  veri- 
fied by  anology  to  the  fifth  subdivision  of  Rule  25,  providing:  "If 
special  relief  pending  the  suit  be  desired,  the  bill  should  be  veri- 
fied by  the  oath  of  the  plaintiff  or  someone  having  knowledge  of 
the  facts  upon  which  such  relief  is  asked."  In  case  the  pleading 
is  verified,  Equity  Rule  36  provides  for  the  officers  before  whom 
the  same  may  be  done,  as  follows:  "Every  pleading  which  is  re- 
quired to  be  sworn  to  by  statute,  or  these  rules,  may  be  verified  be- 
fore any  justice  or  judge  of  any  court  of  the  United  States,  or  of 
any  state  or  territory,  or  of  the  District  of  Columbia,  or  any  clerk 

c  See  Equity  Rule  18,  with  Annotations,  in  Appendix,  post. 


446         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  977 

of  any  court  of  the  United  States,  or  of  any  territory,  of  the 
District  of  Columbia,  or  any  notary  public."  Equity  Rule  78  rt 
provides  for  an  affirmation  in  lieu  of  an  oath  where  the  party 
has  conscientious  scruples  against  taking  an  oath. 

§  975.  Discovery. 

Pt.  Equity  Rule  58*  ".  .  .  the  defendant  at  any  time 
after  filing  his  answer,  and  not  later  than  twenty-one  days 
after  the  joinder  of  issue,  .  .  .  may  file  interrogatories  in 
writing  for  the  discovery  by  the  opposite  party  or  parties 
of  facts  and  documents  material  to  the  .  .  .  defense  of 
the  cause,  with  a  note  at  the  foot  thereof,  stating  which  of 
the  interrogatories  each  of  the  parties  is  required  to  answer. 


Further  on  this  subject  will  be  found  under  the  chapter  35  on 
"Trial— Equity  Suits,"  sections  1006  to  1011  hereafter. 

§  976.  Amendments.  By  Equity  Rule  30,f  above  quoted,  it 
is  provided  that  "the  answer  may  be  amended  by  leave  of  the 
court  or  judge  upon  reasonable  notice,  so  as  to  put  any  averment 
in  issue  when  justice  requires  it." 

By  Equity  Rule  33,11  an  answer  setting  up  an  affirmative  de- 
fense, set-off,  or  counterclaim,  "if  found  insufficient  but  amend- 
able, the  court  may  allow  an  amendment  upon  terms  or  strike  out 
the  matter." 

§  977.  Supplemental  Answer. 

Equity  Rule  31+*  "Upon  application  of  either  party,  the 
court  or  judge,  may,  upon  reasonable  notice  and  such  terms 
as  are  just,  permit  him  to  file  and  serve  a  supplemental  plead- 
ing, alleging  material  facts  occurring  after  his  former  plead- 
ing, or  of  which  he  was  ignorant  when  it  wras  made,  including 
the  judgment  or  decree  of  a  competent  court  rendered  after 
the  commencement  of  the  suit,  determining  the  matters  in 
controversy  or  a  part  thereof." 

d  See  Equity  Rule  78,  with  Annotations,  in  Appendix,  post. 
«  See  Equity  Rule  58,  with  Annotations,  in  Appendix,  post. 
t  See  Equity  Rule  30,  with  Annotations,  in  Appendix,  post. 
h  See  Equity  Rule  33,  with  Annotations,  in  Appendix,  post. 
*  See  Equity  Rule  34,  with  Annotations,  in  Appendix,  post. 


§    979  THE    ANSWEB EQUITY    SUITS  447 

§  978.  Attacks  upon  Answer.     Further  and  particular  state- 
ment may  be  required. 

Equity  Rule  20*  "A  further  and  better  statement  of  the 
nature  of  the  claim  or  defense,  or  further  and  better  particu- 
lars of  any  matter  stated  in  any  pleading,  may  in  any  case  be 
ordered,  upon  such  terms,  as  to  costs  and  otherwise,  as  may 
be  just" 

Redundant,  impertinent,  or  scandalous  matter  may  be  stricken 
out. 

Equity  Rule  21.k  "The  right  to  except  to  bills,  answers, 
and  other  proceedings  for  scandal  or  impertinence  shall  not 
obtain,  but  the  court  may,  upon  motion  or  its  own  initiative, 
order  any  redundant,  impertinent  or  scandalous  matter 
stricken  out,  upon  such  terms  as  the  court  shall  think  fit." 

The  sufficiency  of  the  defense  may  be  tested  by  a  motion  to 
strike  out. 

Equity  Rule  S3.1  "Exceptions  for  insufficiency  of  an  an- 
swer are  abolished.  But  if  an  answer  set  up  an  affirmative 
defense,  set-off,  or  counterclaim,  the  plaintiff  may,  upon  five 
days'  notice,  or  such  further  time  as  the  court  may  allow,  test 
the  sufficiency  of  the  same  by  motion  to  strike  out.  If  found 
insufficient  but  amendable  the  court  may  allow  an  amendment 
upon  terms,  or  strike  out  the  matter." 

§  979.  Reply — When  Required — When  Cause  at  Issue. 

Equity  Rule  31.m  "Unless  the  answer  assert  a  set-off  or 
counterclaim,  no  reply  shall  be  required  without  special  or- 
der of  the  court  or  judge,  but  the  cause  shall  be  deemed  at 
issue  upon  the  filing  of  the  answer,  and  any  new  or  affirm- 
ative matter  therein  shall  be  deemed  to  be  denied  by  the 
plaintiff.  If  the  answer  include  a  set-off  or  counterclaim, 
the  party  against  whom  it  is  asserted  shall  reply  within  ten 
days  after  the  filing  of  the  answer,  unless  a  longer  time  be 

J  See  Equity  Rule  20,  with  Annotations,  in  Appendix,  post. 
t  See  Equity  Rule  21,  with  Annotations,  in  Appendix,  post. 
1  See  Equity  Rule  33,  with  Annotations,  in  Appendix,  post. 
m  See  Equity  Rule  31,  with  Annotations,  in  Appendix,  post. 


448         MONTGOMERY'S  MANUAL  OF  FEDEUAL  PHOCEDUEE      §  980 

allowed  by  the  court  or  judge.  If  the  counterclaim  is  one 
which  affects  the  rights  of  other  defendants,  they  or  their 
solicitors  shall  be  served  with  a  copy  of  the  same  within  ten 
dajs  from  the  filing  thereof,  and  ten  days  shall  be  accorded 
to  such  defendants  for  filing  a  reply.  In  default  of  a  reply,  a 
decree  pro  confesso  on  the  counterclaim  may  be  entered  as 
in  default  of  an  answer  to  the  bill." 

§  980.  Counterclaim  and  Set-off. 

3d  Par.  Equity  Rule  30.n  "The  answer  must  state  in 
short  and  simple  form  any  counterclaim  arising  out  of  the 
transaction  which  is  the  subject-matter  of  the  suit,  and  may, 
without  cross  bill,  set  out  any  set-off  or  counterclaim  against 
the  plaintiff  which  might  be  the  subject  of  an  independent 
suit  in  equity  against  him,  and  such  set-off  or  counterclaim 
so  set  up  shall  have  the  same  effect  as  a  cross  suit,  so  as  to 
enable  the  court  to  pronounce  a  final  judgment  in  the  same 
suit,  both  on  the  original  and  cross  claims." 

This  short  paragraph  is  the  only  Federal  authority  that  recog- 
nizes counterclaims  and  set-offs,  for  prior  to  the  adoption  of  the 
new  equity  rules  the  only  relief  that  could  be  sought  in  an  answer 
was  the  dismissal  of  the  bill.  Affirmative  matter  could  not  be  set 
up  in  the  answer,  but  was  required  to  be  pleaded  by  cross  bill. 
The  Federal  decisions  relating  to  Federal  procedure,  therefore,  do 
not  define  counterclaims  and  set-offs,  the  Federal  Statutes  do 
not  provide  for  them,  nor  do  the  new  rules  except  that  above 
quoted,  and  Rule  31  providing  for  replies  to  counterclaims  or 
set-offs. 

The  rule  designates  two  kinds  of  counterclaims:  (1)  Those 
"arising  out  of  the  transaction  which  is  the  subject-matter  of  the 
suit;"  (2)  those  "which  might  be  the  subject  of  an  independent 
suit  in  equity  against"  plaintiff. 

The  second  kind  of  a  counterclaim  is  broad  enough  to  include 
matters  "connected  with  the  subject  of  the  action"  though  not 
necessarily  "arising  out  of  the  transaction  which  is  the  subject- 
matter  of  the  suit."  It  is  broader  than  and  includes  that  kind 
of  cross  claim  which  is  known  as  a  "set-off,"  which  term  seems 
to  be  merely  an  alternative  expression  for  "counterclaim." 

n  See  Equity  Rule  30,  with  Annotations,  in  Appendix,  post. 


§    982  THE    ANSWER EQUITY    SUITS  449 

There  is  a  large  group  of  states  which  make  a  distinction  be- 
tween set-off  and  counterclaim,  the  set-off  being  used  to  set  out 
independent  or  external  matters  as  the  subject  of  a  cross  claim, 
while  in  another  group  of  states,  the  term  "set-off"  is  not  used,  but 
there  are  two  kinds  of  counterclaims,  the  second  kind  of  which 
correspond  to  the  "set-off"  above  mentioned.1  That  "set-off"  is 
merely  an  alternative  term  for  "counterclaim"  is  borne  out  by 
the  fact  that  the  rules  always  use  these  terms  in  the  alternative 
with  the  disjunctive  "or."  In  Rule  30,  "set  out  any  set-off  or 
counterclaim,"  and  again,  "and  such  set-off  or  counterclaim."  In 
Rule  31,  "unless  the  answer  asserting  set-off  or  counterclaim,"  and 
again,  "if  the  answer  include  a  set-off  or  counterclaim,"  and  the 
rule  also  provides  for  a  decree  pro  confesso  on  the  counterclaim, 
but  does  not  mention  such  a  decree  in  connection  with  set-off. 

§  981.  Set-off  or  Counterclaim  Subject  of  Independent 
Equity  Suit  against  Plaintiff.  Equity  Rule  30°  provides  that 
the  answer  "may,  without  cross  bill,  set  out  any  set-off  or  counter- 
claim against  the  plaintiff  which  might  be  the  subject  of  an  in- 
dependent suit  in  equity  against  him."  Does  this  set-off  or  counter- 
claim include  other  matters  than  that  which  formerly  could  have 
been  set  up  by  cross  bill  ? 

The  cross  bill  under  the  former  practice  has  been  confined  to 
matters  germane  to  the  purposes  of  the  bill.  It  was  required  to 
be  connected  with  it  in  some  way.  The  use  of  the  term  "set-off" 
indicates  separate  unconnected  extrinsic  cause  of  action,  and  would 
seem  to  be  much  broader. 

§  982.  Cross  Bill  not  Provided  for  in  Rules.  The  only  ref- 
erence in  the  index  of  the  equity  rules  to  the  cross  bill  reads  as 
follows:  "Cross-bill  counterclaim  to  be  stated  in  answer,  and  not 
by."  The  only  reference  in  the  rules  to  the  cross  bill  is  in  Equity 
Rule  30,  providing  that  the  defendant  "may,  without  cross  bill, 
set  out  any  set-off  or  counterclaim  against  the  plaintiff  which 
might  be  the  subject  of  an  independent  suit  in  equity  against 

1  Pomeroy's  Code  Remedies    (4th  ed.)   p.  835. 
o  See  Equity  Rule  30,  with  Annotations,  in  Appendix,  post. 
Monto.— 29. 


450        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  982 

him."  The  Federal  statutes  and  the  new  equity  rules  do  not 
provide  for  the  procedure  in  the  event  of  the  filing  of  a  cross  bill, 
and  the  evident  intent  is  that  a  counterclaim  or  set-off  should  be 
used,  instead  of  cross  bill,  where  this  is  possible. 

If  there  is  any  doubt  as  to  whether  or  not  defensive  matter, 
which  formerly  could  have  been  set  up  by  cross  bill,  comes  under 
the  provisions  of  the  new  rule,  the  safer  practice,  until  this  matter 
has  been  definitely  determined,  is  to  plead  the  defense  both  as  a 
counterclaim  and  by  cross  bill,  assuming  that  the  procedure  on  the 
cross  bill  will  be  analogous  to  the  new  practice  with  reference  to 
original  bills. 

The  new  counterclaim  and  set-off  seem  to  cover  all  or  almost 
all  which  could  have  been  pleaded  by  the  cross  bill  under  the  form- 
er practice.  The  purposes  of  the  cross  bill  were  as  follows : 

1.  Affirmative  relief.     As  the  only  prayer  of  the  answer  under 
the  old  practice  was  for  dismissal  of  the  bill,  the  cross  bill  was 
the  only  method  of  obtaining  affirmative  relief.     The  new  rule 
provides  that  the  "set-off  or  counterclaim  so  set  up  shall  have  the 
same  effect  as  a  cross  suit,  so  as  to  enable  the  court,  to  pronounce 
a  final  judgment  in  the  same  suit  both  on  the  original  and  cross 
claims."     There  can  be  no  doubt  but  that  under  Rule  30,  the 
reformation  of  an  instrument  sued  upon  may  be  sought  by  the 
defendant  on  the  ground  of  mistake  or  fraud,  or  that  the  defendant 
could  set  up  usury,  or  pray  that  an  agreement  be  surrendered 
which  is  sought  to  be  specifically  enforced.     In  fact,  these  are 
matters  arising  out  of  the  transaction  which  is  the  subject-matter 
of  the  suit,  and  must  be  set  out  in  the  answer,  and  not  by  cross  bill. 

2.  Discovery.     The  cross  bill  is  no  longer  necessary  for  dis- 
covery in  aid  of  an  answer,  as  Equity  Rule  58  now  provides  for 
the  filing  of  interrogatories  in  writing  for  the  discovery,  by  the 
opposite  party  or  parties,  of  facts  and  documents  material  to  the 
support  or  the  defense  of  the  cause. 

This  was  also  true  under  the  old  rules,  but  the  old  rules  by 
old  Equity  Rule  72  recognized  the  right  of  defendant  to  obtain  dis- 
covery by  cross  bill  by  requiring  an  answer  to  the  original  bill 
before  the  plaintiff  was  compelled  to  answer  the  cross  bill.  Old 
Equity  Rule  72  is  now  abolished,  and  there  is  no  recognition  of 


§    982  THE    ANSWER EQUITY    SUITS  451 

the  cross  bill  in  the  new  rules  except  the  permission  to  set  up  mat- 
ters without  a  cross  bill. 

3.  To  set  up  new  matter  arising  after  issue  joined.    Under  the 
old  practice  it  was  not  possible  to  set  up  new  matter  by  a  supple- 
m,ental  answer.    Old  Rule  46  as  to  supplemental  pleading  referred 
to  the  bill  only.     Therefore  it  was  necessary  to  set  up  this  new 
matter  by  cross  bill. 

This  is  no  longer  necessary,  because  the  new  Equity  Rule  34 
provides  for  a  supplemental  answer  as  well  as  a  supplemental  bill. 

Equity  Rule  34*  "Upon  application  of  either  party  the 
court  or  judge  may,  upon  reasonable  notice  and  such  terms  as 
are  just,  permit  him  to  file  and  serve  a  supplemental  pleading, 
alleging  material  facts  occurring  after  his  former  pleading, 
or  of  which  he  was  ignorant  when  it  was  made,  including  the 
judgment  or  decree  of  a  competent  court  rendered  after  the 
commencement  of  the  suit  determining  the  matters  in  con- 
troversy or  a  part  thereof." 

4.  Means  of  defense.     The  cross  bill  is  no  longer  necessary  to 
set  up  matters  which  could  not  be  pleaded  in  the  answer,  because 
the  answer  is  now  of  such  a  broad  character  that  defensive  matters 
which  were  formerly  barred  may  now  be  included  under  the  pro- 
vision of  Equity  Rule  30,  which  reads:     "The  answer  may  state 
as  many  defenses,  in  the  alternative,  regardless  of  consistency,  as 
the  defendant  deems  essential  to  his  defense."    Hence,  a  discharge 
in  bankruptcy;   an  agreement  or  conveyance,  or  matters  purely 
legal,  could  be  set  up  in  an  original  or  a  supplemental  answer. 

5.  To  settle  conflicting  claims  between  the  defendants.     The 
new  rule  provides  for  two  distinct  kinds  of  counterclaims:   (1) 
"Any  counterclaim  arising  out  of  the  transaction  which  is  the 
subject-matter   of   the   suit;"    (2)    "any   set-off   or  counterclaim 
against  thepiaintiff  which  might  be  the  subject  of  an  independent 
suit  in  equity  against  him." 

The  second  kind  of  counterclaim  would  not  cover  conflicting 
claims  among  the  defendants  themselves,  as  the  rule  specifically 
states  that  the  set-off  or  counterclaim  is  "against  the  plaintiff." 

i»  Seo  Equity  Rule  34.  with  Annotations,  in  Appendix,  post. 


452  MOJS'TCiOMKKY's   MANUAL   OF   FEDERAL   PROCEDURE        §    983 

Equity  Rule  31  provides:  "If  the  answer  includes  a  set-off 
or  counterclaim,  the  party  against  whom  it  is  asserted  shall  reply 
within  ten  (10)  days  after  the  filing  of  the  answer,  unless  a  long- 
er time  be  allowed  by  the  riourt  or  judge.  The  party  mentioned 
is  evidently  the  plaintiff,  as  other  defendants  ought  to  be  given 
notice  of  a  counterclaim  affecting  them  before  being  required  to 
reply  to  same." 

The  first  kind  of  counterclaim  mentioned,  one,  "arising  out  of 
the  transaction  which  is  the  subject-matter  of  the  suit,"  evidently 
may  affect  the  rights  of  others  than  the  plaintiff,  for  Equity  Rule 
31  provides  with  respect  to  this  class  of  counterclaim,  "if  the  coun- 
terclaim is  one  which  affects  the  rights  of  other  defendants,  they  or 
their  solicitors  shall  be  served  with  a  copy  of  the  same  within  ten 
(10)  days  from  the  filing  thereof,  and  ten  (10)  days,  shall  be  ac- 
corded to  such  defendant  for  filing  a  reply." 

It  would,  therefore,  seem  that  conflicting  claims  between  the 
defendants  arising  out  of  the  transaction  which  is  the  subject- 
matter  of  the  suit  could  be  litigated  by  counterclaim.  If,  however, 
there  are  conflicting  claims  between  the  defendants  which  do  not 
affect  plaintiff  and  which  do  not  arise  out  of  the  transaction,  which 
is  the  subject-matter  of  the  suit,  but  the  determination  of  which  is 
necessary  for  a  complete  decree  between  all  the  parties  or  con- 
nected with  the  subject-matter  of  the  bill,  then  a  cross  bill  would 
undoubtedly  lie. 

6.  For  a  complete  determination  of  all  matters  affected  by  the 
bill.  That  this  is  the  intent  of  the  rule  as  is  indicated  by  the 
language  that  "such  set-off  or  counterclaim,  so  set  up,  shall  have 
the  same  effect  as  a  cross  suit,  so  as  to  enable  the  court  to  pro- 
nounce a  final  judgment  in  the  same  suit  both  on  the  original  and 
cross  claims." 

§  983.  Effect  of  Failure  to  Plead  Counterclaim  or  Set-off. 

The  rule  provides  that  "the  answer  must  state  .  .  .  any  counter- 
claim arising  out  of  the  transaction  which  is  the  subject-matter 
of  the  suit."  This  would  seem  to  preclude  setting  up  such  matter 
thereafter,  as  under  the  rule  stated  in  this  form,  the  issues  would 
necessarily  be  involved  and  therefore  res  adjudicata. 


§    983  THE  ANSWER EQUITY    SUITS  453 

The  rule  provides  also  that  the  "answer  may,  without  cross  bill, 
set  out  any  set-offs  or  counterclaims  against  the  plaintiff  which 
might  be  the  subject  of  an  independent  suit  in  equity  against  him." 
The  use  of  the  verb  in  the  permissive  form  would  indicate  that 
as  to  such  matters  the  defendant  would  not  afterward  be  barred 
from  proceeding  by  an  independent  suit  in  equity  on  his  claim. 
It  has  been  generally  held  that,  in  the  absence  of  express  statutory 
provisions  to  the  contrary,  the  failure  to  plead  these  matters  does 
not  bar  them,  and  no  such  effect  is  given  by  the  statutes  authorizing 
the  counterclaim.  In  code  states  the  defendant  may  elect  to  set 
up  his  cross  demand  as  a  counterclaim,  or  may  not  do  so,  but  may 
set  up  and  maintain  a  separate  action  upon  it8 

2  Pomcroy's  Code  Kemedies,  p.  938,  cases  cited. 


CHAPTER  35. 

TRIAL— EQUITY  SUITS. 

Sec. 

1000.  In  General. 

1001.  Depositions  after  Issue  and  Affidavits  of  Expert  Witnesses  in  Patent 

and  Trademark   Cases. 

1002.  Mode  of  Proof. 

1003.  Rulings  on  Admissibility  of  Evidence. 

1004.  Appointment  of  a  Stenographer. 

1005.  Affidavits  of  Expert  Witnesses — Patent  and  Trademark  Cases. 

1006.  Interrogatories  for  Discovery  of  Facts  and  Documents. 

1007.  Interrogatories  to  be  Answered  by  an  Officer  of  a  Corporation  Party. 

1008.  Interrogated  Party  Entitled  to  Copies  of  Interrogatories. 

1009.  Answers  to  Interrogatories — Time  for. 

1010.  Enforcing  Answers  to  Interrogatories. 

1011.  Demand  on  Party  to  Admit   Execution  on  Genuineness  of  Documents, 

etc. 

1012.  Pleading  and  Proof  in  Actions  for  Infringement. 

§  1000.  In  General.  Under  Equity  Rule  46,*  the  trial  of 
an  equity  suit,  like  that  of  an  action  at  law,  is  by  producing  the 
witnesses  in  open  court,  unless  under  Equity  Rule  47b  deposi- 
tions have  been  taken  for  good  and  exceptional  cause  for  departing 
from  the  general  rule,  or,  under  Equity  Rule  54C  after  the  cause 
was  at  issue,  depositions  were  taken  under  §§  863,  865,  and  867, 
R.  S.  Chapter  16  treats  of  depositions. 

§  1001.  Depositions  after  Issue  and  Affidavits  of  Expert 
Witnesses  in  Patent  and  Trademark  Cases.  Under  Equity 
Rule  47d  depositions  may  be  taken  when  allowed  by  statute  or  for 
good  and  exceptional  cause  for  departing  from  the  general  rule. 

«  See  Equity  Rule  46,  with   Annotations,  in  Appendix,   post   also  §   1003, 
infra. 

1>  See  Equity  Rule  47,  with  Annotations,  in  Appendix,  post. 
«  See  Equity  Rule  54,  with  Annotations,  in  Appendix,  post. 
d  See  Equity  Rule  47,  with  Annotations;  in  Appendix,  post. 

454 


§    1003  TRIAL EQUITY  SUITS  455 

Those  of  the  plaintiff  within  sixty  days  from  the  time  the  cause  is 
at  issue ;  of  the  defendant  within  thirty  days  from  the  expiration 
for  filing  plaintiff's  depositions;  rebutting  depositions  by  either 
party  within  twenty  days  after  the  time  for  taking  original  deposi- 
^tions  expires. 

Under  Equity  Rule  54, e  if  the  cause  is  at  issue,  depositions 
may  be  taken  as  provided  by  §§  863,  865,  866,  and  867,  Eevised 
Statutes. 

In  cases  involving  the  validity  or  scope  of  a  patent  or  trademark, 
the  testimony  in  chief  of  expert  witnesses  as  to  matters  of  opinion 
may  be  set  forth  in  affidavits,  under  Equity  Rule  48,*  those  of 
plaintiff  within  forty  days  after  the  causes  at  issue,  defendant 
within  twenty  days  after  plaintiff's  time  has  expired,  and  rebut- 
ting affidavits  within  fifteen  days  after  the  expiration  of  the  time 
for  filing  original  affidavits. 

§  1002.  Mode  of  Proof. 

§  862,  E.  8.,  Comp.  Stat.  1901,  p.  661,  3  F.  8.  A.  8, 
Rose's  Code,  §  1036.  "The  mode  of  proof  in  causes  of 
equity  ....  shall  be  according  to  rules  now  or  hereafter 
prescribed  by  the  Supreme  Court,  except  as  herein  specially 
provided." 

In  chapter  14,  on  "Evidence,"  will  be  found  quoted  the  statutory 
provisions  permitting  the  admission  of  copies  of  documents,  for 
restoring  laws,  judgments,  and  records  and  admission  of  same  in 
evidence,  and  with  respect  to  acts  of  the  state  legislatures,  records, 
and  judicial  proceedings  of  state  courts,  their  authentication  and 
proof  and  other  matters  of  like  character. 

Provisions  as  to  subpoenas  and  other  matters  relating  to  wit- 
nesses are  set  out  in  chapter  15  above.  Depositions  are  treated 
in  chapter  16  above. 

§  1003.  Rulings  on  Admissibility  of  Evidence. 

Equity  Rule  46.g     "In  all  trials  in  equity  the  testimony 

e  See  Equity  Rule  54,  with  Annotations,  in  Appendix,  post. 
*  See   Equity  Rule  48,  with  Annotations,  in   Appendix,   post,  also   §   1005, 
infra. 

s  See  Equity  Rule  46,  with  Annotations,  in  Appendix,  post. 


456         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDTRE    §   1005 

of  witnesses  shall  be  taken  orally  in  open  court,  except  as 
otherwise  provided  by  statute  or  these  rules.  The  court  shall 
pass  upon  the  admissibility  of  all  evidence  offered  as  in 
actions  at  law.  When  evidence  is  offered  and  excluded,  and 
the  party  against  whom  the  ruling  is  made  excepts  thereto  at 
the  time,  the  court  shall  take  and  report  so  much  thereof,  or 
make  such  a  statement  respecting  it,  as  will  clearly  show 
the  character  of  the  evidence,  the  form  in  which  it  was 
offered,  the  objection  made,  the  ruling,  and  the  exception. 
If  the  appellate  court  shall  be  of  opinion  that  the  evidence 
should  have  been  admitted,  it  shall  not  reverse  the  decree 
unless  it  be  clearly  of  opinion  that  material  prejudice  will 
result  from  an  affirmance,  in  which  event  it  shall  direct  such 
further  steps  as  justice  may  require." 

§  1004.  Appointment  of  a  Stenographer. 

Equity  Rule  50.**  "When  deemed  necessary  by  the  court 
or  officer  taking  testimony,  a  stenographer  may  be  appoint- 
ed who  shall  take  down  testimony  in  shorthand  and,  if  re- 
quired,  transcribe  the  same.  His  fee  shall  be  fixed  by  the 
court  and  taxed  ultimately  as  costs.  The  expense  of  taking 
a  deposition,  or  the  cost  of  a  transcript,  shall  be  advanced  by 
the  party  calling  the  witness  or  ordering  the  transcript," 

§  1005.  Affidavits    of     Expert    Witnesses — Patent    and 
Trade-mark  Cases. 

Equity  Rule  4$*  "In  a  case  involving  the  validity  or 
scope  of  a  patent  or  trade  mark,  the  district  court  may,  upon 
petition,  order  that  the  testimony  in  chief  of  expert  witness- 
es, whose  testimony  is  directed  to  matters  of  opinion,  be  set 
forth  in  affidavits  and  filed  as  follows:  Those  of  the  plain- 
tiff within  forty  days  after  the  cause  is  at  issue;  those  of 
the  defendant  within  twenty  days  after  plaintiff's  time  has 
expired ;  and  rebutting  affidavits  within  fifteen  days  after 
the  expiration  of  the  time  for  filing  original  affidavits. 
Should  the  opposite  party  desire  the  production  of  any  affi- 
ant for  cross-examination,  the  court  or  judge  shall,  on  motion, 
direct  that  said  cross-examination  and  any  re-examination 
take  place  before  the  court  upon  the  trial,  and  unless  the  af- 
fiant is  produced  and  submits  to  cross-examination  in  compli- 

l»  See  Equity  Rule  50,  with  Annotations,  in  Appendix,  post. 
I  See  Equity  Rule  48,  with  Annotations,  in  Appendix,  post. 


§    1009  TRIAL— EQUITY   SUITS  457 

ance  with  such  direction,  his  affidavit  shall  not  be  used  as 
evidence  in  the  cause." 

§  1006.  Interrogatories  for  Discovery  of  Facts  and  Docu- 
ments. 

x 

Pi.  Equity  Rule  58?  "The  plaintiff  at  any  time  after 
filing  the  bill  and  not  later  than  twenty-one  days  after  the 
joinder  of  issue,  and  the  defendant  at  any  time  after  filing 
his  answer  and  not  later  than  twenty-one  days  after  the  join- 
der of  issue,  and  either  party  at  any  time  thereafter  by  leave 
of  the  court  or  judge,  may  file  interrogatories  in  writing  for 
the  discovery  by  the  opposite  party  or  parties  of  facts  and 
documents  material  to  the  support  or  defense  of  the  cause, 
with  a  note  at  the  foot  thereof  stating  which  of  the  interrog- 
atories each  of  the  parties  is  required  to  answer.  But  no 
party  shall  file  more  than  one  set  of  interrogatories  to  the 
same  party  without  leave  of  the  court  or  judge." 

§  1007.  Interrogatories  to  be  Answered  by  an  Officer  of 
a  Corporation  Party. 

Pt.  Equity  Rule  58.^  ".  .  .  If  any  party  to  the  cause 
is  a  public  or  private  corporation,  any  opposite  party  may 
apply  to  the  court  or  judge  for  an  order  allowing  him  to  file 
interrogatories  to  be  answered  by  any  officer  of  the  corpora- 
tion, and  an  order  may  be  made  accordingly  for  the  examina- 
tion of  such  officer  as  may  appear  to  be  proper  upon  such 
interrogatories  as  the  court  or  judge  shall  think  fit.  .  .  ." 

§  1008.  Interrogated  Party  Entitled  to  Copies  of  Interrog- 
atories. 

Pt.  Equity  Rule  58.1  ".  .  .  Copies  shall  be  filed  for 
the  use  of  the  interrogated  party,  and  shall  be  sent  by  the 
clerk  to  the  respective  solicitors  of  record,  or  to  the  last-known 
address  of  the  opposite  party  if  there  be  no  record  solicitor. 


§  1009.  Answers  to  Interrogatories — Time  for. 

Pt.  Equity  Rule  58.™  ".     .     .     Interrogatories  shall  be 

J  See  Equity  Rule  58,  with  Annotations,  in  Appendix,  post. 
it  See  Equity  Rule  58,  with  Annotations,  in  Appendix,  post. 
1  See  Equity  Rule  58,  with  Annotations,  in  Appendix,  post. 
in  See  Equity  Rule  58,  with  Annotations,  in  Appendix,  post. 


458        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §   1012 

answered,  and  the  answers  filed  in  the  clerk's  office,  within 
fifteen  days  after  they  have  been  served,  unless  the  time 
be  enlarged  by  the  court  or  judge.  Each  interrogatory  shall 
be  answered  separately  and  fully,  and  the  answers  shall  be 
in  writing,  under  oath,  and  signed  by  the  party  or  corporate 
officer  interrogated.  Within  ten  days  after  the  service  of 
interrogatories,  objections  to  them,  or  any  of  them,  may 
be  presented  to  the  court  or  judge,  with  proof  of  notice  of  the 
purpose  so  to  do,  and  answers  shall  be  deferred  until  the 
objections  are  determined,  which  shall  be  at  as  early  a  time 
as  is  practicable.  In  so  far  as  the  objections  are  sustained, 
answers  shall  not  be  required.  .  .  ." 

§  1010.  Enforcing  Answers  to  Interrogatories. 

Pt.  Equity  Rule  58.n  ".  .  .  The  court  or  judge,  upon 
motion  and  reasonable  notice,  may  make  all  such  orders  as 
may  be  appropriate  to  enforce  answers  to  interrogatories  or 
to  effect  the  inspection  or  production  of  documents  in  the 
possession  of  either  party  and  containing  evidence  material 
to  the  cause  of  action  or  defense  of  his  adversary.  Any  party 
failing  or  refusing  to  comply  with  such  an  order  shall  be 
liable  to  attachment,  and  shall  also  be  liable,  if  a  plaintiff, 
to  have  his  bill  dismissed,  and,  if  a  defendant,  to  have  his 
answer  stricken  out  and  be  placed  in  the  same  situation  as  if 
he  had  failed  to  answer.  .  .  ." 

§  1011.  Demand  on  Party  to  Admit  Execution  or  Genuine- 
ness of  Documents,  etc. 

Pt.  Equity  Rule  58.°  ".  .  .  By  a  demand  served  ten 
days  before  the  trial,  either  party  may  call  on  the  other  to 
admit  in  writing  the  execution  or  genuineness  of  any  docu- 
ment, letter  or  other  writing,  saving  all  just  exceptions;  and 
if  such  admission  be  not  made  within  five  days  after  such 
service,  the  costs  of  proving  the  document,  letter  or  writing 
shall  be  paid  by  the  party  refusing  or  neglecting  to  make 
such  admission,  unless  at  the  trial  the  court  shall  find  that 
the  refusal  or  neglect  was  reasonable.  .  .  ." 

§  1012.  Pleading  and  Proof  in  Actions  for  Infringement. 
§  4920,  R.  S.,  Comp.  Stat.  1901,  p.  3394,  5  F.  8.  A.  567, 

»  See  Equity  Rule  58,  with  Annotations,  in  Appendix,  post. 
o  See  Equity  Rule  58,  with  Annotations,  in  Appendix,  post. 


§     1012  TRIAL EQUITY   SUITS  459 

Rose's  Code,  §  1172.  "In  any  action  for  infringement  the 
defendant  may  plead  the  general  issue,  and  having  given 
notice  in  writing  to  the  plaintiff  or  his  attorney  thirty  days 
before,  may  prove  on  trial  any  one  or  more  of  the  following 
special  matters: 

"First.  That  for  the  purpose  of  deceiving  the  public  the 
description  and  specification  filed  by  the  patentee  in  the 
Patent  Office  was  made  to  contain  less  than  the  whole  truth 
relative  to  his  invention  or  discovery,  or  more  than  is  nec- 
essary to  produce  the  desired  effect ;  or, 

"Second.  That  he  had  surreptitiously  or  unjustly  ob- 
tained the  patent  for  that  which  was  in  fact  invented  by 
another,  who  was  using  reasonable  diligence  in  adapting  and 
perfecting  the  same ;  or 

"Third.  That  it  has  been  patented  or  described  in  some 
printed  publication  prior  to  his  supposed  invention  or  dis- 
covery thereof,  or  more  than  two  years  prior  to  his  applica- 
tion for  a  patent  therefor ;  or, 

"Fourth.  That  he  was  not  the  original  and  first  inventor 
or  discoverer  of  any  material  and  substantial  part  of  the 
thing  patented ;  or, 

"Fifth.  That  it  had  been  in  public  use  or  on  sale  in  this 
country  for  more  than  two  years  before  his  application  for 
a  patent,  or  had  been  abandoned  to  the  public. 

"And  in  notices  as  to  proof  of  previous  invention,  knowl- 
edge, or  use  of  the  thing  patented,  the  defendant  shall  state 
the  names  of  the  patentees  and  the  dates  of  their  patents,  and 
when  granted,  and  the  names  and  residences  of  the  persons 
alleged  to  have  invented  or  to  have  had  the  prior  knowledge 
of  the  thing  patented,  and  where  and  by  whom  it  had  been 
used ;  and  if  any  one  or  more  of  the  special  matters  alleged 
shall  be  found  for  the  defendant,  judgment  shall  be  rendered 
for  him,  with  costs.  And  the  like  defenses  may  be  pleaded 
in  any  suit  in  equity  for  relief  against  an  alleged  infringe- 
ment ;  and  proofs  of  the  same  may  be  given  upon  like  notice 
in  the  answer  of  the  defendant,  and  with  the  like  effect" 


CHAPTER    36. 

MASTERS  IN  CHANCERY. 

Sec. 

1030.  Appointment  and  Compensation. 

1031.  Reference  of  Exceptional  Matters  to. 

1032.  Notice  and  Hearing  of  Reference. 

1033.  Regulation  and  Method  of  Proceedings. 

1034.  Master's  Report — Exceptions — Costs. 

§   1030.  Appointment  and   Compensation. 

Equity  Rule  68*  "The  district  courts  may  appoint  stand- 
ing masters  in  chancery  in  their  respective  districts  (a  major- 
ity of  all  the  judges  thereof  concurring  in  the  appointment), 
and  they  may  also  appoint  a  master  pro  hoc  vice  in  any  par- 
ticular case.  The  compensation  to  be  allowed  to  every  mas- 
ter shall  be  fixed  by  the  district  court,  in  its  discretion,  having 
regard  to  all  the  circumstances  thereof,  and  the  compensa- 
tion shall  be  charged  upon  and  borne  by  such  of  the  parties 
in  the  cause  as  the  court  shall  direct.  The  master  shall  not 
retain  his  report  as  security  for  his  compensation ;  but  when 
the  compensation  is  allowed  by  the  court,  he  shall  be  en- 
titled to  an  attachment  for  the  amount  against  the  party  who 
is  ordered  to  pay  the  same,  if,  upon  notice  thereof,  he  does 
not  pay  in  within  the  time  prescribed  by  the  court." 

§  1031.  Reference  of  Exceptional  Matters  to. 

Equity  Rule  59.b  "Save  in  matters  of  account,  a  refer- 
ence to  master  shall  be  the  exception,  not  the  rule,  and  shall 
be  made  only  upon  a  showing  that  some  exceptional  con- 
dition requires  it.  When  such  a  reference  is  made,  the 
party  at  whose  instance  or  for  whose  benefit  it  is  made  shall 
cause  the  order  of  reference  to  be  presented  to  the  master 
for  a  hearing  within  twenty  days  succeeding  the  time  when 

»  See  Equity  Rule  68,  with  Annotations,  in  Appendix,  post. 
*  See  Equity  Rule  59,  with  Annotations,  in  Appendix,  post. 

4GO 


§    1033  MASTERS   IN    CHANCERY  461 

the  reference  was  made,  unless  a  longer  time  be  specially 
granted  by  the  court  or  judge;  if  he  shall  omit  to  do  so,  the 
adverse  party  shall  be  at  liberty  forthwith  to  cause  proceed- 
ings to  be  had  before  the  master,  at  the  costs  of  the  party 
securing  the  reference." 

\ 

§  1032.  Notice  and  Hearing  of  Reference. 

Equity  Rule  60.c  "Upon  every  such  reference,  it  shall 
be  the  duty  of  the  master,  as  soon  as  he  reasonably  can  after 
the  same  is  brought  before  hhn,  to  assign  a  time  and  place 
for  proceedings  in  the  same,  and  to  give  due  notice  thereof 
to  each  of  the  parties,  or  their  solicitors ;  and  if  either 
party  shall  fail  to  appear  at  the  time  and  place  appointed, 
the  master  shall  be  at  liberty  to  proceed  ex  parte,  or,  in 
his  discretion,  to  adjourn  the  examination  and  proceedings 
to  a  future  day,  giving  notice  to  the  absent  party  or  his 
solicitor  of  such  adjournment ;  and  it  shall  be  the  duty  of  the 
master  to  proceed  with  all  reasonable  diligence  in  every  such 
reference,  and  with  the  least  practicable  delay,  and  either 
party  shall  be  at  liberty  to  apply  to  the  court,  or  a  judge 
thereof,  for  an  order  to  the  master  to  speed  the  proceedings 
and  to  make  his  report,  and  to  certify  to  the  court  or  judge 
the  reason  for  any  delay." 

§  1033.  Regulation  and  Method  of  Proceedings. 

Equity  Rule  62.A  "The  master  shall  regulate  all  the  pro- 
ceedings in  every  hearing  before  him,  upon  every  reference; 
and  he  shall  have  full  authority  to  examine  the  parties  in  the 
cause,  upon  oath,  touching  all  matters  contained  in  the 
reference;  and  also  to  require  the  production  of  all  books, 
papers,  writings,  vouchers,  and  other  documents  applicable 
thereto ;  and  also  to  examine  on  oath,  viva  voce,  all  witnesses 
produced  by  the  parties  before  him,  or  by  deposition,  accord- 
ing to  the  acts  of  Congress,  or  otherwise,  as  here  provided; 
and  also  to  direct  the  mode  in  which  the  matters  requiring 
evidence  shall  be  proved  before  him ;  and  generally  to  do  all 
other  acts,  and  direct  all  other  inquiries  and  proceedings  in 
the  matters  before  him,  which  he  may  deem  necessary  and 
proper  to  the  justice  and  merits  thereof  and  the  rights  of 
the  parties." 

c  See  Equity  Rule  60,  with  Annotations,  in  Appendix,  post. 
d  See  Equity  Rule  62,  with  Annotations,  in  Appendix,  post. 


462 


Equity  Rule  65.e  "The  master  shall  be  at  liberty  to  ex- 
amine any  creditor  or  other  person  coming  in  to  claim  before 
him,  either  upon  written  interrogatories  or  viva  voce,  or  in 
both  modes,  as  the  nature  of  the  case  may  appear  to  him  to 
require.  The  evidence  upon  such  examinations  shall  be 
taken  down  by  the  master,  or  by  some  other  person  by  his 
order  and  in  his  presence,  if  either  party  requires  it,  in 
order  that  the  same  may  be  used  by  the  court  if  necessary." 

Equity  Rule  63*  "All  parties  accounting  before  a  master 
shall  bring  in  their  respective  accounts  in  the  form  of  debtor 
and  creditor;  and  any  of  the  other  parties  who  shall  not  be 
satisfied  with  the  account  so  brought  in  shall  be  at  liberty 
to  examine  the  accounting  party  viva,  voce,  or  upon  inter- 
rogatories, as  the  master  shall  direct." 

Equity  Rule  64-K  "All  affidavits,  depositions,  and  docu- 
ments which  have  been  previously  made,  read,  or  used  in 
the  court  upon  any  proceeding  in  any  cause  or  matter  may 
be  used  before  the  master." 

§  1034.  Master's  Report — Exceptions — Costs. 

Equity  Rule  61*  "In  the  reports  made  by  the  master 
to  the  court,  no  part  of  any  state  of  facts,  account,  charge, 
affidavit,  deposition,  examination,  or  answer  brought  in  or 
used  before  him  shall  be  stated  or  recited.  But  such  state 
of  facts,  account,  charge,  affidavit,  deposition,  examination, 
or  answer  shall  be  identified,  and  referred  to,  so  as  to  inform 
the  court  what  state  of  facts,  account,  charge,  affidavit,  dep- 
osition, examination,  or  answer  were  so  brought  in  or  used." 

Equity  Rule  66.1  "The  master,  as  soon  as  his  report  is 
ready,  shall  return  the  same  into  the  clerk's  office  and  the 
day  of  the  return  shall  be  entered  by  the  clerk  in  the  equity 
docket.  The  parties  shall  have  twenty  days  from  the  time 
of  the  filing  of  the  report  to  file  exceptions  thereto,  and  if 
no  exceptions  are  within  that  period  filed  by  either  party, 
the  report  shall  stand  confirmed.  If  exceptions  are  filed, 
they  shall  stand  for  hearing  before  the  court,  if  then  in 

e  See  Equity  Rule  65,  with  Annotations,  in  Appendix,  post. 
f  See  Equity  Rule  63,  with  Annotations,  in  Appendix,  post. 
K  See  Equity  Rule  64,  with  Annotations,  in  Appendix,  post. 
l»  See  Equity  Rule  61,  with  Annotations,  in  Appendix,  post. 
1  See  Equity  Rule  66,  with  Annotations,  in  Appendix,  post. 


§    1034  MASTERS   IN   CHANCERY  463 

session,  or,  if  not,  at  the  next  sitting  held  thereafter,  by 
adjournment  or  otherwise." 

Equity  Rule  67.J  "In  order  to  prevent  exceptions  to  re- 
ports from  being  filed  for  frivolous  causes,  or  for  mere  delay, 
the  party  whose  exceptions  are  overruled,  shall,  for  every 
exception  overruled,  pay  five  dollars  costs  to  the  other  party, 
and  for  every  exception  allowed  shall  be  entitled  to  the  same 
costs." 

J  See  Equity  Rule  67,  with  Annotations,  in  Appendix,  post. 


CHAPTER  37. 

RECEIVERS  AND  INJUNCTIONS. 

Sec. 

1051.  Persons  Ineligible  to  Act  as   Receivers. 

1052.  Receivers  Manage  Property  According  to  State  Laws. 

1052a.  Rights  of  Employees  on  Properties  in  Hands  of  Receivers  to  be  Heard 
on  Terms  of  Employment. 

1053.  Receivers — When    Suable   without   Leave   of   Court. 

1054.  Power  of  Federal  Courts  to  Issue  Writs — In  General. 

1055.  Injunctions — When  may  be  Granted  by  Justice  or  Judge  Instead  of  by 

Court. 

1056.  Temporary  Restraining  Order — Bond. 

1057.  Preliminary  Injunctions  and  Temporary  Restraining  Orders — Notice. 

1058.  Procedure  Where  Order  Granted  without  Notice. 

1059.  Dissolution  and  Modification  of  Temporary  Restraining  Orders. 

1060.  Order  to  be  Filed  Forthwith. 

1061.  Injunction  Pending  Appeal. 

1062.  When  Proceedings   in   State  Courts  may  be  Stayed. 

1063.  Injunction    to    Restrain    Enforcement    of    State    Laws    on    Ground    of 

Unconstitutionality — By   Whom  Granted. 

1064.  Hearing  of  Application  in  Such  Cases — Notice. 

1065.  Appeal  from  Order  Granting  or  Denying  Injunction  in  Such  Cases. 

1066.  Enforcement  of  Injunction. 

1067.  Writs  of  Ne  Exeat — When  and  by  Whom  Granted. 

1068.  Writs   of   Scire   Facias — By   What   Courts   Issuable. 

1069.  Power  of  Courts  to  Administer  Oaths  and  Punish  for  Contempt. 

1070.  Injunction     Restraining     Receivership     Proceedings     against     National 

Banks. 

1071.  No  interlocutory  Injunction  against  National  Banks  in  State  Courts. 

1072.  Tax  Assessment  or  Collection  may  Not  be  Enjoined. 

1073.  Injunctions  on  Distress  Warrant  against  Officer  for  Failure  to  Account 

for  Public  Moneys — Procedure. 

1074.  Procedure  upon  Refusal  to  Grant,  or  on  Dissolution  of  Such  Injunction. 

§  1051.  Persons  Ineligible  to  Act  as  Receivers. 

§  68,  Judicial  Code,*  36  Stat.  at  L.  1105,  Comp.  St. 
1911,  p.  155,  1912  Supp.  F.  S.  A.  v.  1,  p.  159.    "No  clerk 

»  For  Annotations  of  this  §  68,  Judicial  Code,  see  footnote  P,  ante,  our  §  41. 

464 


§    1052a  RECEIVERS    AND    INJUNCTIONS  465 

of  a  district  court  of  the  United  States  or  his  deputy  shall 
be  appointed  a  receiver  or  master  in  any  case,  except  where 
the  judge  of  said  court  shall  determine  that  special  reasons 
exist  therefor,  to  be  assigned  in  the  order  of  appointment." 

PL  §  20,  Ad  May  28,  1896,  ch.  252,  Comp.  St.  1901,  p. 
501,  4  F.  8.  A.  81.  "It  shall  not  be  lawful  to  appoint  any 
of  the  officers  named  in  this  section  (marshal,  deputy  mar- 
shal, attorney,  or  assistant  attorney  of  any  district;  jury 
commissioner,  marshal's  clerk,  bailiff,  crier,  juror,  jani- 
tor of  a  public  building,  civil  or  military  employee  of  the 
government,  or  clerk  or  employee  of  any  United  States 
justice  or  judge)  receiver  or  receivers  in  any  case  or  cases 
now  pending  or  that  may  hereafter  be  brought  in  the  courts 
of  the  United  States." 

§  1052.  Receivers  Manage  Property  According  to  State 
Laws. 

§  65,  Judicial  Code?  36  Stat.  at  L.  1104,  Comp.  St. 
1911,  p.  155,  1912  Supp.  F.  S.  A.  v.  1,  p.  159.  "Whenever 
in  any  cause  pending  in  any  court  of  the  United  States 
there  shall  be  a  receiver  or  manager  in  possession  of  any 
property,  such  receiver  or  manager  shall  manage  and  operate 
such  property  according  to  .the  requirements  of  the  valid 
laws  of  the  state  in  which  such  property  shall  be  situated, 
in  the  same  manner  that  the  owner  or  possessor  thereof 
would  be  bound  to  do  if  in  possession  thereof.  Any  receiver 
or  manager  who  shall  wilfully  violate  any  provision  of  this 
section  shall  be  fined  not  more  than  three  thousand  dollars, 
or  imprisoned  not  more  than  one  year,  or  both." 


§   1052a.  Rights  of  Employees  on  Properties  in  Hands  of 
Receivers  to  be  Heard  on  Terms  of  Employment. 

§  9,  Act  July  15,  1913,  ch.  6,  38  Stat.  at  L.  107,  108. 
"That  whenever  receivers  appointed  by  a  Federal  court  are  in 
the  possession  and  control  of  the  business  of  employers  cov- 
ered by  this  act  the  employees  of  such  employers  shall  have 
the  right  to  be  heard  through  their  representatives  in  such 
court  upon  all  questions  affecting  the  terms  and  conditions  of 

l»  Re-enacting  35  Stat.  at  L.  436,  Comp.  St.  190].  p.  582,  4  F.  S.  A.  386, 
which  section  has  been  repealed  by  §  297,  Judicial  Code.     In  general,  Erb  v. 
Morasch,  177  U.  S.  584,  44  L.  ed.  897,  20  Sup.  Ct.  Rep.  819. 
Montg. — 30. 


466        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  1055 

their  employment ;  and  no  reduction  of  wages  shall  be  made 
by  such  receivers  without  the  authority  of  the  court  therefor, 
after  notice  to  such  employees,  said  notice  to  be  given  not 
less  than  twenty  days  before  the  hearing  upon  the  receivers' 
petition  or  application,  and  to  be  posted  upon  all  customary 
bulletin  boards  along  or  upon  the  railway  or  in  the  customary 
places  on  the  premises  of  employers  covered  by  this  act." 

§  1053.  Receivers — When  Suable  without  Leave  of  Court. 
§  66,  Judicial  Code?  36  Slat,  at  L.  1104,  Comp.  St. 
1911,  p.  155,  1912  Sapp.  F.  S.  A.  p.  159.  "Every  receiver 
or  manager  of  any  property  appointed  by  any  court  of  the 
United  States  may  be  sued  in  respect  of  any  act  or  transac- 
tion of  his  in  carrying  on  the  business  connected  with  such 
property,  without  the  previous  leave  of  the  court  in  which 
such  receiver  or  manager  was  appointed;  but  such  suit 
shall  be  subject  to  the  general  equity  jurisdiction  of  the 
court  of  which  such  manager  or  receiver  was  appointed  so 
far  as  the  same  may  be  necessary  to  the  end  of  justice." 

§  1054.  Power  of  Federal  Courts  to  Issue  Writs — In  Gen- 
eral. 

Pt.  §  262,  Judicial  Code?  36  Stat.  at  L.  1162,  Comp.  St. 
1911,  p.  235,  1912  Supp.  F.  S.  A.  v.  1,  p.  241.  ".  .  . 
The  Supreme  Court,  the  circuit  courts  of  appeals,  and  the 
district  courts  shall  have  power  to  issue  all  writs  not  specif- 
ically provided  for  by  statute,  which  may  be  necessary  for 
the  exercise  of  their  respective  jurisdictions,  and  agreeable 
to  the  usages  and  principles  of  law." 

§  1055.  Injunctions — When  may  be  Granted  by  Justice  or 
Judge  Instead  of  by  Court. 

§  264,  Judicial  Code?  36  Stat.  at  L.  1162,  Comp.  St. 

c  Re-enacting  25  Stat.  at  L.  436,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  14,  36, 
826.  830,  Comp.  St.  1001,  p.  582,  4  F.  S.  A.  387,  which  statute  is  repealed  by 
§  297,  Judicial  Code.  In  general,  see  Smith  v.  Jones  Lumber  &  Mercantile 
Co.  et  al.  200  Fed.  647. 

d  Drawn  from  §  716,  R.  S..  Rose's  Code.  §  841.  Foster's  Fed.  Prac.  pp.  79, 
1156-74-80-81-96,  1248,  Comp.  St.  1901.  p.  580.  4  F.  S.  A.  498,  and 
§  12  of  act  of  March  3,  1891,  ch.  517,  26  Stat.  at  L.  829.  Rose's  Code,  §  842, 
4  F.  S.  A.  430.  §  716,  R.  S.,  is  repealed  by  §  297,  Judicial  Code.  In  general, 
United  States  v.  McHie  et  al.  196  Fed.  586. 

e  Drawn  from  §  719.  R.  S..  Rose's  Code.  §  1111,  Foster's  Fed.  Prac.  (4th  ed.) 
pp.  644,  681,  736,  2015,  Comp.  St.  1901,  p.  581,  4  F.  S.  A.  508,  which  section 
is  repealed  by  §  297,  Judicial  Code. 


§    1057  KECEIVEKS    AND    INJUNCTIONS  467 

1911,  p.  236,  1912  Supp.  F.  S.  A.  v.  1,  p.  21+1.  "Writs  of 
injunction  may  be  granted  by  any  justice  of  the  Supreme 
Court  in  cases  where  they  might  be  granted  by  the  Supreme 
Court;  and  by  any  judge  of  a  district  court  in  cases  where 
they  might  be  granted  by  such  court.  But  no  justice  of  the 
Supreme  Court  shall  hear  or  allow  any  application  for  an 
injunction  or  restraining  order  in  any  cause  pending  in  the 
circuit  to  which  he  is  allotted,  elsewhere  than  within  such 
circuit,  or  at  such  place  outside  of  the  same  as  the  parties 
may  stipulate  in  writing,  except  when  it  cannot  be  heard 
by  the  district  judge  of  the  district.  In  case  of  the  absence 
from  the  district  of  the  district  judge,  or  of  his  disability, 
any  circuit  judge  of  the  circuit  in  which  the  district  is 
situated  may  grant  an  injunction  or  restraining  order  in 
any  case  pending  in  the  district  court,  where  the  same  might 
be  granted  by  the  district  judge." 

§  1056.  Temporary  Restraining  Order — Bond. 

§  263,  Judicial  Code,*  36  Stat.  at  L.  1162,  Comp.  St. 
1911,  p.  235,  1912  Supp.  F.  S.  A.  v.  1,  p.  241.  "Whenever 
notice  is  given  of  a  motion  for  an  injunction  out  of  a  dis- 
trict court,  the  court  or  judge  thereof  may,  if  there  appears 
to  be  danger  of  irreparable  injury  from  delay,  grant  an 
order  restraining  the  act  sought  to  be  enjoined  until  the 
decision  upon  the  motion;  and  such  order  may  be  granted 
with  or  without  security,  in  the  discretion  of  the  court  or 
judge." 

§  1057.  Preliminary  Injunctions  and  Temporary  Restrain- 
ing Orders — Notice. 

Pi.  Equity  Rule  73.s  "No  preliminary  injunction  shall 
be  granted  without  notice  to  the  opposite  party.  Nor  shall 
any  temporary  restraining  order  be  granted  without  notice 
to  the  opposite  party,  unless  it  shall  clearly  appear  from 
specific  facts,  shown  by  affidavit  or  by  the  verified  bill, 
that  immediate  and  irreparable  loss  or  damage  will  result 
to  the  applicant  before  the  matter  can  be  heard  on  notice. 


*  Re-enactinjj  §  718,  R.  S..  Rose's  Code,  §  1114,  Foster's  Fed.  Prac.  (4th  ed.) 
pp.  426.  643,  733,  735,  739,  Comp.  St.  1901,  p.  580,  4  F.  S.  A.  508,  which  section 
is  repealed  by  §  297,  Judicial  Code.  In  general,  United  States  v.  Weber  et  al. 
114  Fed.  950. 

K  See  Equity  Rule  73,  with  Annotations,  in  Appendix,  post. 


408        MONTGOMERY'S  MANUAL  OF  FEDEKAL  PROCEDURE    §  1061 

§  1058.  Procedure  Where  Order  Granted  without  Notice. 
Pi.  Equity  Rule  7#.h  ".  .  .  In  case  a  temporary  re- 
straining order  shall  be  granted  without  notice,  in  the  con- 
tingency specified,  the  matter  shall  be  made  returnable  at 
the  earliest  possible  time,  and  in  no  event  later  than  ten 
days  from  the  date  of  the  order,  and  shall  take  precedence 
of  all  matters,  except  older  matters  of  the  same  character. 
When  the  matter  comes  up  for  hearing  the  party  wfeo  ob- 
tained the  temporary  restraining  order  shall  proceed  with 
his  application  for  a  preliminary  injunction,  and  if  he  does 
not  do  so  the  court  shall  dissolve  his  temporary  restraining 
order.  .  .  ." 

§  1059.  Dissolution  and  Modification  of  Temporary  Re- 
straining Orders.  In  addition  to  the  penalty  of  dissolution  pre- 
scribed by  the  preceding  section,  a  temporary  restraining  order 
may  be  dissolved  or  modified  in  accordance  with,  the  following 
rule : — 

Pt.  Equity  Rule  73.*  ".  .  .  Upon  two  days'  notice  to 
the  party  obtaining  such  temporary  restraining  order,  the 
opposite  party  may  appear  and  move  the  dissolution  or  mod- 
ification of  the  order,  and  in  that  event  the  court  or  judge 
shall  proceed  to  hear  and  determine  the  motion  as  expedi- 
tiously  as  the  ends  of  justice  may  require.  .  .  ." 

§  1060.  Order  to  be  Filed  Forthwith. 

Pt.  Equity  Rule  73*  ".  .  .  Every  temporary  restrain- 
ing order  shall  be  forthwith  filed  in  the  clerk's  office." 

§  1061.  Injunction  Pending  Appeal. 

Equity  Rule  7-4. k  ''When  an  appeal  from  a  final  decree, 
in  any  equity  suit,  granting  or  dissolving  an  injunction,  is 
allowed  by  a  justice  or  a  judge  who  took  part  in  the  decision 
of  the  cause,  he  may,  in  his  discretion,  at  the  time  of  such 
allowance,  make  an  order  suspending,  modifying  or  restor- 
ing the  injunction  during  the  pendency  of  the  appeal,  upon 

l»  See  Equity  Rule  73,  with  Annotations,  in  Appendix,  post. 
*  See  Equity  Rule  73,  with  Annotations,  in  Appendix,  post. 
J  See  Equity  Rule  73,  with  Annotations,  in  Appendix,  post. 
k  See  Equity  Rule  74,  with  Annotations,  in  Appendix,  post. 


§    1063  EECEIVEKS    AND    INJUNCTIONS  460 

such  terms,  as  to  bond  or  otherwise,  as  he  may  consider  prop- 
er for  the  security  of  the  rights  of  the  opposite  party." 

§  1062.  When  Proceedings  in  State  Courts  may  be  Stayed. 
§  265,  Judicial  Code,1  36  Stat.  at  L.  1162,  Comp.  St. 
1911,  p.  286,  1912  Supp.  F.  S.  A.  242.  "The  writ  of  in- 
junction shall  not  be  granted  by  any  court  of  the  United 
States  to  stay  proceedings  in  any  coiirt  of  a  state,  except  in 
cases  where  such  injunction  may  be  authorized  by  any  law 
relating  to  proceedings  in  bankruptcy." 

§  1063.  Injunction  to  Restrain  Enforcement  of  State  Laws 
on  Ground  of  Unconstitutionality — By  Whom  Granted. 

First  Ft.  §  266,  Judicial  Code,™  36  Stat.  at  L.  1162, 
Comp.  St.  1911,  p.  236,  1912  Supp.  F.  S.  A.  v.  1,  p.  242,  as 
amended  by  act  March  4,  1913,  ch.  160,  37  Stat.  at  L.  1013. 
"Xo  interlocutory  injunction  suspending  or  restraining  the 
enforcement,  operation,  or  execution  of  any  statute  of  a  state 
by  restraining  the  action  of  any  officer  of  such  state  in  the  en- 
forcement or  execution  of  an  order  made  by  an  administrative 
board  or  commission  acting  under  and  pursuant  to  the  stat- 
utes of  such  state,  shall  be  issued  or  granted  by  any 
justice  of  the  Supreme  Court,  or  by  any  district  court 
of  the  United  States,  or  by  any  judge  thereof,  or  by  any 
circuit  judge  acting  as  district  judge,  upon  the  ground 
of  the  Unconstitutionality  of  such  statute,  unless  the  applica- 
tion for  the  same  shall  be  presented  to  a  justice  of  the  Su- 
preme Court  of  the  United  States,  or  to  a  circuit  or  district 
judge,  and  shall  be  heard  and  determined  by  three  judges, 
of  whom  at  least  one  shall  be  a  justice  of  the  Supreme  Court, 
or  a  circuit  judge,  and  the  other  two  may  be  either  circuit 
or  district  judges,  and  unless  a  majority  of  said  three  judges 
shall  concur  in  granting  such  application.  Whenever  such 
application  as  aforesaid  is  presented  to  a  justice  of  the  Su- 
preme Court,  or  to  a  judge,  he  shall  immediately  call  to  his 
assistance  to  hear  and  determine  the  application  two  other 

1  Re-enacting  §  720,  R.  S.,  Rose's  Code.  §  20.  Foster's  Fed.  Prac.  (4th  ed.) 
pp.  425.  694.  727,  1810,  Comp.  St.  1901.  p.  581,  4  F.  S.  A.  509,  which  section 
is  repealed  by  §  297,  Judicial  Code.  In  general,  The  San  Pedro,  223  U.  S. 
365,  56  L.  ed*  473,  32  Sup.  Ct.  Rep.  275,  Ann.  Cas.  1913  D,  1221. 

"i  Re-enacting  §  17  of  the  act  of  June  18,  1910,  ch.  309,  36  Stat.  at  L.  557. 
which  section  is  repealed  by  §  297.  Judicial  Code.  In  general.  Ex  parte  Young, 
209  U.  S.  123,  52  L.  ed.  714,  28  Sup.  Ct.  Rep.  441,  13  L.R.A.(X.S.)  932,  14 
Ann.  Cas.  764. 


470        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  1064 

judges:   Provided,  however,  That  one  of  such  three  judges 
shall  be  a  justice  of  the  Supreme  Court,  or  a  circuit  judge." 

Last  Pi.  §  266  added  by  amendment  of  March  4,  1913, 
ch.  160.  "It  is  further  provided  that  if  before  the  final  hear- 
ing of  such  application  a  suit  shall  have  been  brought  in  a 
court  of  the  state  having  jurisdiction  thereof  under  the  laws 
of  such  state,  to  enforce  such  statute  or  order,  accompanied 
by  a  stay  in  such  state  court  of  proceedings  under  such  stat- 
ute or  order  pending  the  determination  of  such  suit  by  such 
state  court,  all  proceedings  in  any  court  of  the  United  States 
to  restrain  the  execution  of  such  statute  or  order  shall  be 
stayed  pending  the  final  determination  of  such  suit  in  the 
courts  of  the  state.  Such  stay  may  be  vacated  upon  proof 
made  after  hearing,  and  notice  of  ten  days  served  upon  the 
attorney  general  of  the  state,  that  the  suit  in  the  state  courts 
is  not  being  prosecuted  with  diligence  and  good  faith." 

§  1064.  Hearing  of  Application  in  Such  Cases — Notice. 

PL  §  266,  Judicial  Code*  36  Stat.  at  L.  1162,  Comp.  St. 
1911,  p.  236,  1912  Supp.  F.  8.  A.  v.  1,  p.  242.  "Said  appli- 
cation shall  not  be  heard  or  determined  before  at  least  five 
days'  notice  of  the  hearing  has  been  given  to  the  governor 
and  to  the  attorney  general  of  the  state,  and  to  such  other 
persons  as  may  be  defendants  in  the  suit:  Provided,  That 
if  of  opinion  that  irreparable  loss  or  damage  would  result 
to  the  complainant  unless  a  temporary  restraining  order  is 
granted,  any  justice  of  the  Supreme  Court,  or  any  circuit 
or  district  judge,  may  grant  such  temporary  restraining 
order  at  any  time  before  such  hearing  and  determination 
of  the  application  for  an  interlocutory  injunction,  but  such 
temporary  restraining  order  shall  remain  in  force  only  until 
the  hearing  and  determination  of  the  application  for  an  in- 
terlocutory injunction  upon  notice  as  aforesaid.  The  hearing 
upon  such  application  for  an  interlocutory  injunction  shall 
be  given  precedence  and  shall  be  in  every  way  expedited  and 
be  assigned  for  a  hearing  at  the  earliest  practicable  day  after 
the  expiration  of  the  notice  hereinbefore  provided  for." 

»  For  Annotation  of  this  §  266,  Judicial  Code,  see  footnote  m,  next  above, 
our  §  1063. 


§    1066  RECEIVERS    AND    INJUNCTIONS  471 

§  1065.  Appeal  from  Order  Granting  or  Denying  Injunc- 
tion in  Such  Cases. 

PL  §  266,  Judicial  Code,0  36  Stat.  at  L.  1162,  Comp.  St. 
1911,  p.  237,  1912  Supp.  F.  S.  A.  v.  1,  p.  242.  "An  appeal 
may  be  taken  direct  to  the  Supreme  Court  of  the  United 
States  from  the  order  granting  or  denying,  after  notice  and 
hearing,  an  interlocutory  injunction  in  such  case." 

§  1066.  Enforcement  of  Injunction. 

Equity  Rule  7.p  "The  process  of  subpoena  shall  constitute 
the  proper  mesne  process  in  all  suits  of  equity,  in  the  first 
instance,  to  require  the  defendant  to  appear  and  answer  the 
bill ;  and,  unless  otherwise  provided  in  these  rules  or  specially 
ordered  by  the  court,  a  writ  of  attachment  and,  if  the  defend- 
ant cannot  be  found,  a  writ  of  sequestration,  or  a  writ  of 
assistance  to  enforce  a  delivery  of  possession,  as  the  case 
may  require,  shall  be  the  proper  process  to  issue  for  the  pur- 
pose of  compelling  obedience  to  any  interlocutory  or  final 
order  or  decree  of  the  court." 

Equity  Rule  #.a  "Final  process  to  execute  any  decree 
may,  if  the  decree  be  solely  for  the  payment  of  money,  be  by 
a  writ  of  execution,  in  the  form  used  in  the  district  court  in 
suits  at  common  law  in  actions  of  assumpsit.  If  the  decree 
be  for  the  performance  of  any  specific  act,  as  for  example, 
for  the  execution  of  a  conveyance  of  land  or  the  delivering  up 
of  deeds  or  other  documents,  the  decree  shall,  in  all  cases, 
prescribe  the  time  within  which  the  act  shall  be  done,  of 
which  the  defendant  shall  be  bound,  without  further  service, 
to  take  notice ;  and  upon  affidavit  of  the  plaintiff,  filed  in  the 
clerk's  office,  that  the  same  has  not  been  complied  with  with- 
in the  prescribed  time,  the  clerk  shall  issue  a  writ  of  attach- 
ment against  the  delinquent  party,  from  which,  if  at- 
tached thereon,  he  shall  not  be  discharged,  unless  upon  a 
full  compliance  with  the  decree  and  the  payment  of  all  costs, 
or  upon  a  special  order  of  the  court,  or  a  judge  thereof,  upon 
motion  and  affidavit,  enlarging  the  time  for  the  performance 
thereof.  If  the  delinquent  party  cannot  be  found  a  writ  of 
sequestration  shall  issue  against  his  estate,  upon  the  return 

o  For  Annotation  of  this  §  266,  Judicial  Code,  see  footnote  n»,  our  §  1063, 
above. 

p  Sec  Equity  Rule  7,  with  Annotations,  in  Appendix,  post. 
o  See  Equity  Rule  8,  with  Annotations,  in  Appendix,  post. 


472        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  1069 

of  non  est  inventus,  to  compel  obedience  to  the  decree.  If 
a  mandatory  order,  injunction  or  decree  for  the  specific  per- 
formance of  any  act  or  contract  be  not  complied  with,  the 
court  or  a  judge,  besides,  or  instead  of,  proceedings  against 
the  disobedient  party  for  a  contempt  or  by  sequestration,  may 
by  order  direct  that  the  act  required  to  be  done,  be  done,  so 
far  as  practicable,  by  some  other  person  appointed  by  the 
court  or  judge,  at  the  cost  of  the  disobedient  party,  and  the 
act,  when  so  done,  shall  have  like  effect  as  if  done  by  him." 

§  1067.  Writs  of  Ne  Exeat— When  and  by  Whom 
Granted. 

§  261,  Judicial  Code,*  36  Stat.  at  L.  1162,  Comp.  St. 
1911,  p.  235,  1912  Supp.  F.  S.  A.  v.  1,  p.  241.  "Writs  of 
ne  exeat  may  be  granted  by  any  justice  of  the  Supreme  Court, 
in  cases  where  they  might  be  granted  by  the  Supreme  Court ; 
and  by  any  district  judge,  in  cases  where  they  might  be 
granted  by  the  district  court  of  which  he  is  a  judge.  But 
no  writ  of  ne  exeat  shall  be  granted  unless  a  suit  in  equity 
is  commenced,  and  satisfactory  proof  is  made  to  the  court 
or  judge  granting  the  same  that  the  defendant  designs  quickly 
to  depart  from  the  United  States." 

§  1068.  Writs  of  Scire  Facias — By  What  Courts  Issuable. 
Pt.  §  262,  Judicial  Code*  36  Stat.  at  L.  1162,  Comp.  St. 
1911,  p.  235,  1912  Supp.  F.  S.  A.  v.  1,  p.  241.     "The  Su- 
preme Court   and  the  district  courts  shall  have  power  to 
issue  writs  of  scire  facias." 

§  1069.  Power  of  Courts  to  Administer  Oaths  and  Punish 
for  Contempt. 

§  268,  Judicial  Code*  36  Stat.  at  L.  1162,  Comp.  St.  1911, 
p.  237,  1912  Supp.  F.  S.  A.  v.  1,  p.  243.  "The  said  courts 
shall  have  power  to  impose  and  administer  all  necessary  oaths, 

*  Re-enacting  §  717,  R.  S.,  Rose's  Code,  §  843,  Foster's  Fed.  Prac.   (4th  ed.) 
p.  856.  Comp.  St.  1901,  p.  580,  5  F.  S.  A.  353,  which  section  is  repealed  by 
§  297,  Judicial  Code. 

The  power  to  issue  this  writ  lies  only  in  the  Supreme  Court,  the  district 
court  and  their  judges,  as  it  is  ancillary  to  the  exercise  of  original  jurisdic- 
tion only.  In  general,  Shainwald  v.  Lewis,  46  Fed.  839. 

"  For  Annotation  of  this  §  262,  Judicial  Code,  see  footnote  d.  ante,  our 
§  1054. 

*  For  Annotation   of   this   §   268.  Judicial   Code,   see   footnote  a,   ante,   our 
§  487. 


§    1072  EECEIVEKS    AND    INJUNCTIONS  473 

and  to  punish,  by  fine  or  imprisonment,  at  the  discretion 
of  the  court,  contempts  of  their  authority:  Provided,  That 
such  power  to  punish  contempts  shall  not  be  construed  to  ex- 
tend to  any  cases  except  the  misbehavior  of  any  person  in 
their  presence,  or  so  near  thereto  as  to  obstruct  the  adminis- 
tration of  justice,  the  misbehavior  of  any  of  the  officers  of 
said  courts  in  their  official  transactions,  and  the  disobedience 
or  resistance  by  any  such  officer,  or  by  any  party,  juror,  wit- 
ness, or  other  person  to  any  lawful  writ,  process,  order,  rule, 
decree,  or  command  of  the  said  courts." 

§  1070.  Injunction  Restraining  Receivership  Proceedings 
against  National  Banks. 

§  5237,  R.  8.,  Comp.  Stat.  1901,  p.  3508,  5  F.  8.  A.  179, 
Rose's  Code,  §  1119.  "Whenever  an  association  against 
which  proceedings  have  been  instituted,  on  account  of  any 
alleged  refusal  to  redeem  its  circulating  notes  as  aforesaid, 
denies  having  failed  to  do  so,  it  may,  at  any  time  within  ten 
days  after  it  has  been  notified  of  the  appointment  of  an  agent, 
as  provided  in  section  fifty-two  hundred  and  twenty-seven, 
apply  to  the  nearest  circuit,  or  district,  or  territorial  court 
of  the  United  States  to  enjoin  further  proceedings  in  the 
premises;  and  such  court,  after  citing  the  Comptroller  of 
the  Currency  to  show  cause  why  further  proceedings  should 
not  be  enjoined,  and  after  the  decision  of  the  court  or  finding 
of  a  jury  that  such  association  has  not  refused  to  redeem  its 
circulating  notes,  when  legally  presented  in  the  lawful  money 
of  the  United  States,  shall  make  an  order  enjoining  the 
Comptroller,  and  any  receiver  acting  under  his  direction, 
from  all  further  proceedings  on  account  of  such  alleged  re- 
fusal." 

§  1071.  No    Interlocutory    Injunction    against    National 
Banks  in  State  Courts. 

PL  §  5242,  R.  8.,  Comp.  Stat.  1901,  p.  3517,  5  F.  8.  A. 
188.  "No  .  .  .  injunction  .  .  .  shall  be  issued 
against  such  association  (national  bank)  or  its  property  be- 
fore final  judgment  in  any  suit,  action,  or  proceeding  in 
any  state,  county,  or  municipal  court." 

§  1072.  Tax  Assessment  or  Collection  may  not  be  En- 
joined. 

§  3224,  R.  8.,  Comp.  Stat.  1901,  p.  2088,3  F.  8.  A.  600. 


474         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE   §  1074 

"No  suit  for  the  purpose  of  restraining  the  assessment  or 
collection  of  any  tax  shall  be  maintained  in  any  court." 

This  section  applies  only  to  Federal  taxation,1  and  it  is  doubt- 
ful, inasmuch  as  it  is  contained  in  that  part  of  the  Revised  Stat- 
utes relating  to  internal  revenue,  whether  it  applies  to  other 
forms  of  taxation. 

§  1073.  Injunctions  on  Distress  Warrant  against  Officer 
for  Failure  to  Account  for  Public  Moneys — Procedure. 

§  3636,  R.  8.,  Comp.  Stat.  1901,  p.  2421,  6  F.  S.  A.  559. 
"Any  person  who  considers  himself  aggrieved  by  any  warrant 
of  distress  issued  under  the  foregoing  provisions  may  pre- 
fer a  bill  of  complaint  to  any  district  judge  of  the  United 
States,  setting  forth  therein  the  nature  and  extent  of  the 
injury  of  which  he  complains ;  and  thereupon  the  judge  may 
grant  an  injunction  to  stay  proceedings  on  such  warrant 
altogether,  or  for  so  much  thereof  as  the  nature  of  the  case 
requires.  But  no  injunction  shall  issue  till  the  party  apply- 
ing for  it  gives  bond,  with  sufficient  security,  in  a  sum  to 
be  prescribed  by  the  judge,  for  the  performance  of  such 
judgment  as  may  be  awarded  against  him ;  nor  shall  the  issu- 
ing of  such  injunction  in  any  manner  impair  the  lien  pro- 
duced by  the  issuing  of  the  warrant.  And  the  same  pro- 
ceedings shall  be  had  on  such  injunction  as  in  other  cases, 
except  that  no  answer  shall  be  necessary  on  the  part  of  the 
United  States;  and  if,  upon  dissolving  the  injunction,  it 
appears  to  the  satisfaction  of  the  judge  that  the  application 
for  the  injunction  was  merely  for  delay,  the  judge  may  add 
to  the  lawful  interest  assessed  on  all  sums  found  due  against 
the  complainant  such  damages  as,  with  such  lawful  interest, 
shall  not  exceed  the  rate  of  ten  per  centum  a  year.  Such 
injunction  may  be  granted  or  dissolved  by  the  district  judge 
either  in  or  out  of  court." 

§  1074.  Procedure  upon  Refusal  to  Grant,  or  on  Dissolu- 
tion of  Such  Injunction. 

§  3631,  R.  8.,  Comp.  Stat.  1901,  p.  2W,  6  F.  S.  A.  560. 
"When  the  district  judge  refuses  to  grant  an  injunction  to 

iShelton  v.  Platt,  139  U.  S.  597,  35  L.  ed.  273,  11  Sup.  Ct.  Rep.  646; 
Fchulonberg  Co.  v.  Hayward,  20  Fed.  422:  State  R.  R.  Tax  Cases,  92  U.  S. 
f»75.  23  L.  ed.  663. 


§    1074:  RECEIVERS    AND    INJUNCTIONS  475 

stay  proceedings  on  a  distress  warrant,  as  aforesaid,  or  dis- 
solves such  injunction  after  it  is  granted,  any  person  who 
considers  himself  aggrieved  by  the  decision  in  the  premises 
may  lay  before  the  circuit  justice,  or  circuit  judge  of  the 
circuit  within  which  such  district  lies,  a  copy  of  the  proceed- 
ing had  before  the  district  judge;  arid  thereupon  the  circuit 
justice  or  circuit  judge  may  grant  an  injunction  or  permit 
an  appeal,  as  the  case  may  be,  if,  in  his  opinion,  the  equity 
of  the  case  requires  it.  The  same  proceedings,  subject  to 
the  same  conditions,  shall  be  had  upon  such  injunction  in 
the  circuit  court  as  are  prescribed  in  the  district  court." 

The  appellate  powers  of  the  circuit  court  herein  referred  to 
were,  by  act  of  1891,  vested  in  the  circuit  courts  of  appeals,  and 
Supreme  Court. 


CHAPTER    38. 

DECREE— EQUITY  SUITS. 

Sec. 

1080.  Form  of  Decree. 

1081.  Correction  of  Mistakes — Rehearing. 

1082.  Enforcement. 

1083.  Lien  of  Decree  Not  Devested  by  Creation  of  a  Xew  District  or  Division 

nor  by  the  Division  or  Transfer  of  Territory. 

§  1080.  Form  of  Decree. 

Equity  Rule  71*  Form  of  decree.  "In  drawing  up  de- 
crees and  orders,  neither  the  bill  nor  answer  nor  other  plead- 
ings, nor  any  part  thereof,  nor  the  report  of  any  master,  nor 
any  other  prior  proceeding,  shall  be  recited  or  stated  in  the 
decree  or  order ;  but  the  decree  and  order  shall  begin,  in  sub- 
stance, as  follows:  'This  cause  came  on  to  be  heard  (or  to  be 
further  heard,  as  the  case  may  be)  at  this  term,  and  was 
argued  by  counsel ;  and  thereupon,  upon  consideration  there- 
of, it  was  ordered,  adjudged,  and  decreed  as  follows,  viz.:' '' 
(Here  insert  the  decree  or  order.) 

Equity  Rule  10*  Decree  for  deficiency  in  foreclosures, 
etc.  "In  suits  for  the  foreclosure  of  mortgages,  or  the  en- 
forcement of  other  liens,  a  decree  may  be  rendered  for  any 
balance  that  may  be  found  due  to  the  plaintiff  over  and 
above  the  proceeds  of  the  sale  or  sales,  and  execution  may 
issue  for  the  collection  of  the  same,  as  is  provided  in  Rule 
8  when  the  decree  is  solely  for  the  payment  of  money." 

Pt.  Equity  Rule  8.c  ".  .  .  If  the  decree  be  for  the 
performance  of  any  special  act,  as,  for  example,  the  ex- 
ecution of  a  conveyance  of  land  or  the  delivering  up  of 
deeds  or  other  documents,  the  decree  shall,  in  all  cases,  pre- 
scribe the  time  within  which  the  act  shall  be  done.  .  .  ." 

»  See  Equity  Rule  71,  with  Annotations,  in  Appendix,  post. 
b  See  Equity  Rule  10,  with  Annotations,  in  Appendix,  post. 
«  See  Equity  Rule  8,  with  Annotations,  in  Appendix,  post. 

476 


§    1082  DECREE EQUITY   SUITS  477 

§  1081.  Correction  of  Mistakes — Rehearing. 

Equity  Rule  7#.d  "Clerical  mistakes  in  decrees  or  de- 
cretal orders,  or  errors  arising  from  any  accidental  slip  or 
omission,  may,  at  any  time  before  the  close  of  the  term  at 
which  final  decree  is  rendered,  be  corrected  by  order  of  the 
court  or  a  judge  thereof,  upon  petition,  without  the  form  or 
expense  of  a  hearing." 

Petition  for  rehearing. 

Equity  Rule  69.*  "Every  petition  for  a  rehearing  shall 
contain  the  special  matter  or  cause  on  which  such  re- 
hearing is  applied  for,  shall  be  signed  by  counsel,  and 
the  facts  therein  stated,  if  not  apparent  on  the  record, 
shall  be  verified  by  the  oath  of  the  party  or  by  some  other  per- 
son. No  rehearing  shall  be  granted  after  the  term  at  which 
the  final  decree  of  the  court  shall  have  been  entered  and  re- 
corded, if  an  appeal  lies  to  the  circuit  court  of  appeals  or  the 
Supreme  Court.  But  if  no  appeal  lies,  the  petition  may  be 
admitted  at  any  time  before  the  end  of  the  next  term  of  the 
court,  in  the  discretion  of  the  court." 

§  1082.  Enforcement. 

Equity  Rule  8*  Enforcement  of  final  decrees.  "Final 
process  to  execute  any  decree  may,  if  the  decree  be  solely 
for  the  payment  of  money,  be  by  a  writ  of  execution,  in 
the  form  used  in  the  district  court  in  suits  at  common  law 
in  actions  of  assumpsit.  If  the  decree  be  for  the  per- 
formance of  any  specific  act,  as,  for  example,  for  the  exe- 
cution of  a  conveyance  of  land  or  the  delivering  up  of  deeds 
or  other  documents,  the  decree  shall,  in  all  cases,  prescribe 
the  time  within  which  the  act  shall  be  done,  of  which 
the  defendant  shall  be  bound,  without  further  service,  to 
take  notice;  and  upon  affidavit  of  the  plaintiff,  filed  in 
the  clerk's  office,  that  the  same  has  not  been  complied  with 
within  the  prescribed  time,  the  clerk  shall  issue  a  writ 
of  attachment  against  the  delinquent  party,  from  which, 
if  attached  thereon,  he  shall  not  be  discharged,  unless 
upon  a  full  compliance  with  the  decree  and  the  payment  of 
all  costs,  or  upon  a  special  order  of  the  court,  or  a  judge  there- 
of, upon  motion  and  affidavit,  enlarging  the  time  for  the  per- 

«1  See  Equity  Rule  72,  with  Annotations,  in  Appendix,  post. 
«  See  Equity  Rule  69,  with  Annotations,  in  Appendix,  post. 
*  See  Equity  Rule  8,  with  Annotations,  in  Appendix,  post. 


478         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE  §   1083 

formance  thereof.  If  the  delinquent  party  cannot  be  found 
a  writ  of  sequestration  shall  issue  against  his  estate,  upon 
the  return  of  non  esi  invenius,  to  compel  obedience  to  the 
decree.  If  a  mandatory  order,  injunction,  or  decree  for 
the  specific  performance  of  any  act  or  contract  be  not  com- 
plied with,  the  court  or  a  judge,  besides,  or  instead  of,  pro- 
ceedings against  the  disobedient  party  for  a  contempt  or 
by  sequestration,  may  by  order  direct  that  the  act  required 
to  be  done,  be  done,  so  far  as  practicable,  by  some  other 
person  appointed  by  the  court  or  judge,  at  the  cost  of  the 
disobedient  party,  and  the  act,  when  so  done,  shall  have 
like  effect  as  if  done  by  him." 

Equity  Rule  9.K  Writ  of  assistance.  "When  any  decree  or 
order  is  for  the  delivery  of  possession,  upon  proof  made  by 
affidavit  of  a  demand  and  refusal  to  obey  the  decree  or  order, 
the  party  prosecuting  the  same  shall  be  entitled  to  a  writ  of 
assistance  from  the  clerk  of  the  court." 

§  1083.  Lien  of  Decree  Not  Devested  by  Creation  of  a 
New  District  or  Division  nor  by  the  Division  or  Transfer  of 
Territory.  By  §  60,  Judicial  Code,  already  quoted  and  §  170, 
supra,  it  is  provided  that  the  lien  of  a  decree,  etc.,  shall  not  be 
devested  by  a  change  of  boundaries  of  any  territory,  and  that  a 
certified  copy  thereof  may  be  filed  in  the  proper  court  of  the  divi- 
sion or  district  in  which  the  property  is  located  after  such  transfer, 
and  have  the  same  effect  as  an  original. 

«  See  Equity  Rule  9,  with  Annotations,  in  Appendix,  post. 


CHAPTER    39. 

APPELLATE  JURISDICTION  OF  SUPREME  COURT. 

Sec. 

2000.  In  General. 

2001.  Appeals  from  District  Courts  Direct  to  the  Supreme  Court. 

2002.  What  Constitutes  a  Question   of  Jurisdiction. 

2003.  Rules  for  Determining  the  Respective  Jurisdiction  of  the  Circuit  Courts 

of  Appeal,  and  the   Supreme   Court   Where  the  Jurisdiction   of  the 
Court  Is  in  Issue. 

2004.  Appeals  from  Final  Sentences  and  Decrees  in  Prize  Causes. 

2005.  Cases  Involving  the  Construction  or  Application  of  the  United  States 

Constitution. 

2006.  Constitutionality   of   United   States   Law,   or  Validity   or   Construction 

of  Treaty  Drawn  in  Question. 

2007.  State  Law  or  Constitution  Claimed  to  Contravene  the  Constitution  of 

the  United  States. 

2008.  Clauses  3,  4,  and  5  of  §  238,  Judicial  Code. 

2009.  Appeal  and  Error,  Circuit  Courts  of  Appeal  to  Supreme  Court. 

2010.  Certiorari  by  Supreme  Court  in  Decisions  Otherwise  Final   in  Circuit 

Courts  of  Appeal. 

2011.  Certification  to  Supreme  Court  by  Circuit  Court  of  Appeals. 

2012.  Appeals  from  Court  of  Claims. 

2013.  Appeal  and  Error  from  Courts  of  Porto  Rico. 

2014.  Appeal  and  Error  from  Supreme  Court  of  Hawaii. 

2015.  Appeal  and  Error  from  District  Courts  of  Alaska. 

2016.  Appeal  and  Error  from  the  Supreme  Court  of  the  Philippine  Islands. 

2017.  Jurisdiction  When  Territory  Admitted  after  Judgment  Rendered. 

2018.  Appeal    and    Error    from    the    Court    of   Appeals    for    the    District    of 

Columbia. 

2019.  Review  of  Final  Decisions  of  the  Court  of  Appeals  of  the  District  of 

Columbia,  by  the  Supreme  Court. 

2020.  Appeals  from  Bankruptcy  Courts. 

2021.  Mandamus  to  Revise  and  Correct  Proceedings  in  Lower  Courts. 

§  2000.  In  General.  The  appellate  jurisdiction  of  the  Su- 
preme Court  is  now  prescribed  by  chapter  10,  Judicial  Code,  §§ 
236  et  seq.  It  is  to  be  noted  that  the  "appellate  jurisdiction  con- 

479 


480        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2001 

f erred  by  this  chapter  includes  jurisdiction  of  writs  of  error  as 
well  as  appeals,  and  the  most  of  the  sections  herein  quoted  apply 
alike  to  appellate  procedure  in  law  as  well  as  in  equity. 

The  appellate  jurisdiction  of  the  Supreme  Court,  as  herein 
treated,  is  divided  into  two  general  classes : 

1.  Appellate  jurisdiction  over  decisions  of  district  courts. 

2.  Appellate  jurisdiction  over  decisions  of  circuit  court  of  ap- 
peals. 

The  appellate  jurisdiction  of  the  Supreme  Court  over  state 
courts  is  treated  in  chapter  11,  under  the  head  of  "Removal  from 
State  Court  of  Last  Resort."  The  Supreme  Court's  appellate 
jurisdiction  over  the  decrees  of  the  court  of  claims,  the  courts 
of  Porto  Rico,  Hawaii,  Alaska,  the  Philippine  Islands,  District 
of  Columbia,  and  bankruptcy  courts  are  treated  in  the  present 
chapter  under  separate  sections,  as  is  the  Supreme  Court's  power 
to  revise  and  correct  proceedings  by  mandamus,  etc. 

§  2001.  Appeals  from  District  Courts  Direct  to  the  Su- 
preme Court. 

§  238,  Judicial  Code,*  36  Stat.  at  L.  1151,  Comp.  St. 
1911,  p.  228,  1912  Supp.  F.  8.  A.  231.  "Appeals  and  writs 
of  error  may  be  taken  from  the  district  courts  including  the 
United  States  district  court  of  Hawaii,  direct  to  the  Supreme 
Court  in  the  following  cases : 

"(1)  In  any  case  in  which  the  jurisdiction  of  the  court  is 
in  issue,  in  which  case  the  question  of  jurisdiction  alone 
shall  be  certified  to  the  Supreme  Court  from  the  court  below 
for  decision;  (2)  from  the  final  sentences  and  decrees  in 
prize  causes ;  ( 3 )  in  any  case  that  involves  the  construction 
or  the  application  of  the  Constitution  of  the  United  States ; 
(4)  in  any  case  in  which  the  constitutionality  of  any  law 
of  the  United  States  or  the  validity  or  construction  of  any 
treaty  made  under  its  authority  is  drawn  in  question;  (5) 
and  in  any  case  in  which  the  Constitution  or  law  of  a  state 
is  claimed  to  be  in  contravention  of  the  Constitution  of  the 
United  States." 

a  Drawn  from  act  of  March  3,  1891,  §  5,  ch.  517,  26  Stat.  at  L.  827,  Comp. 
St.  1901,  p.  549,  4  F.  S.  A.  398,  as  amended  by  act  of  Jan.  20,  1897,  ch.  68, 
29  Stat.  at  L.  492,  Comp.  St.  1901.  p.  549,  4  F.  S.  A.  433,  which  sections  are 
repealed  by  §  297,  Judicial  Code. 


§    2002         APPELLATE  JURISDICTION  OF  SUPREME  COURT  481 

In  order  to  maintain  jurisdiction  in  the  Supreme  Court  in  the 
class  of  cases  covered  by  clause  ^o.  1,  of  the  above  quoted  section 
of  the  Judicial  Code,  the  record  must  distinctly  show,  without 
equivocation,  that  the  court  below  sends  up  for  consideration  the 
single  and  definite  question  of  jurisdiction.1 

Xo  other  question  except  that  of  jurisdiction  can  be  certified 
to  the  Supreme  Court  under  this  provision,  but  it  has  been  held 
in  the  case  of  Commercial  Mutual  Accident  Company  v.  Davis, 
123  U.  S.  256,  53  L.  ed.  787,  29  Sup.  Ct.  Rep.  445,  that  if  the 
case  is  taken  to  the  Supreme  Court  on  the  single  ground  of  juris- 
diction and  is  thus  before  that  court,  then  the  supreme  court  will 
pass  upon  questions  of  fact  where  the  decision  below  was  errone- 
ous, and  may  then  set  aside  the  judgment  of  the  court  below. 

§  2002.  What  Constitutes  a  Question  of  Jurisdiction.    The 

question  of  jurisdiction  may  be  certified  to  the  Supreme  Court 
upon  the  following  grounds : 

(1)  Where  it  appears  that  process  has  not  been  served.2 

(2)  Where  a  party  sues  as  assignee  in  a  case  in  which  his 
assignor  could  not  have  maintained  the  action.3 

(3)  In  cases  of  improper  removal  from  a  state  court.4 

(4)  Whenever  the  jurisdiction  of  the  court  below  has  been 
directly  attacked  (under  former  equity  rules,  by  plea  or  demurrer, 
now  by  motion  to  dismiss  or  by  answer).6 

1  Arkansas  v.  Schlierholz,  179  U.  S.  600,  45  L.  ed.  336,  21  Sup.  Ct.  Rep.  329 ; 
Shields  v.   Coleman,   157   U.   S.   168,   39   L.   ed.   660,    15   Sup.   Ct.   Rep.   570; 
Chappell  v.  United  States,  160  U.  S.  499,  40  L.  ed.  510,  16  Sup.  Ct.  Rep.  397 ; 
Mexican  C.  R.  Co.  v.  Eckman,  187  U.  S.  429,  47  L.  ed.  245,  23  Sup.  Ct.  Rep. 
211;   Cosmopolitan  Mining  Company  v.  Walsh,  193  U.  S.  460,  48  L.  ed.  74,9, 

24  Sup.   Ct.   Rep.   489 ;    Anglo-American   Provision    Company   v.   Davis    Pro- 
vision Co.  191  U.  S.  376,  48  L.  ed.  228,  24  Sup.  Ct.  Rep.  93. 

2  Board  of  Trade  v.  Hammond  Elevator  Co.  198  U.  S.  424,  49  L.  ed.  1111, 

25  Sup.  Ct.  Rep.  740;  Remington  v.  Central  P.  R.  Co.  198  U.  S.  95,  49  L.  ed. 
959,  25  Sup.  Ct.  Rep.  577;   Kendall  v.  American  Automatic  Balloon  Co.  198 
U.  S.  477,  49  L.  ed.  1133,  25  Sup.  Ct.  Rep.  768;   Davis  v.  Cleveland  C.  C.  & 
St.  L.  R.  R.  Co.  217  U.  S.  157,  54  L.  ed.  708,  27  L.R.A.(N.S.)    823,  30  Sup. 
Ct.  Rep.  463,  156  Fed.  775,  84  C.  C.  A.  453;   St.  Louis  Cotton  Compress  Co. 
v.  American  Cotton  Co.  60  C.  C.  A.  80,   125   Fed.   196. 

3  Barling  v.  Bank  of  British  N.  A.   1  C.  C.  A.  510,  7  U.  S.  App.  194,  50 
Fed.  261. 

4  Powers  v.  Chesapeake  &  Ohio  R.  R.  Co.  169  U.  S.  92,  42  L.  ed.  673,  18 
Sup.  Ct.  Rep.  264;   Kansas  City  ST.  W.  R.  R.  Co.  v.  Zimmerman,  210  U.  S. 
336,  52  L.  ed.  1084,  28  Sup.  Ct.  Rep.  730. 

5  Davis  &  R.  Bldg.  &  Mfg.  Co.  v.  Barber.  9  C.  C.  A.  79.  18  U.  S.  App.  476 

Montg.— 31. 


482        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2003 

But  the  objection  that  a  court  of  equity  has  no  jurisdiction 
because  of  the  presence  of  an  adequate  remedy  at  law  does  not 
constitute  sufficient  grounds  for  certification  of  the  question  of 
jurisdiction  to  the  Supreme  Court.6 

§  2003.  Rules  for  Determining  the  Respective  Jurisdiction 
of  the  Circuit  Courts  of  Appeal,  and  the  Supreme  Court 
Where  the  Jurisdiction  of  the  Court  Is  in  Issue.  Inasmuch 
as  only  "the  question  of  jurisdiction  alone"  may  be  certified 
directly  to  the  Supreme  Court,  under  clause  (1)  of  §  238,  we 
must  consider  the  effect  of  a  mixture  of  questions  of  jurisdic- 
tion, and  of  issues  on  the  merits  of  the  case. 

The  Supreme  Court,  in  the  case  of  U.  S.  v.  John,  155  U.  S. 
109,  has  laid  down  six  rules,  governing  the  various  situations 
which  arise  in  connection  with  this  situation,  as  follows: 

"(1)  If  the  jurisdiction  of  the  circuit  court  is  in  issue,  and 
decided  in  favor  of  the  defendant,  as  that  disposes  of  the  case, 
the  plaintiff  should  have  the  question  certified,  and  take  his  appeal 
or  writ  of  error  directly  to  this  court.  (2)  If  the  question  of 
jurisdiction  is  in  issue,  and  the  jurisdiction  sustained,  and  then 
judgment  or  decree  is  rendered  in  favor  of  the  defendant  on  the 
merits,  the  plaintiff,  who  has  maintained  the  jurisdiction,  must 
appeal  to  the  circuit  court  of  appeals,  where,  if  the  question  of 
jurisdiction  arises,  the  circuit  court  of  appeals  may  certify  it. 
(3)  If  the  question  of  jurisdiction  is  in  issue,  and  the  jurisdiction 
sustained,  and  the  judgment  on  the  merits  is  rendered  in  favor 
of  the  plaintiff,  then  the  defendant  can  elect  either  to  have  the 
question  certified,  and  come  directly  to  this  court,  or  to  carry 
the  whole  case  to  the  circuit  court  of  appeals,  and  the  question  of 
jurisdiction  can  be  certified  by  that  court.  (4)  If  in  the  case 
last  supposed  the  plaintiff  has  ground  of  complaint  in  respect  of 

60  Fed.  465 ;  Hennessy  v.  Richardson  Drug  Co.  189  U.  S.  25,  47  L.  ed.  697,  23 
Sup.  Ct.  Rep.  532:  The  Alliance,  70  Fed.  274,  17  C.  C.  A.  124,  44  U.  S.  App. 
52;  Equity  Rule  29. 

6  Kansas  City  N.  W.  R.  R.  Co.  v.  Zimmerman,  210  U.  S.  338,  52  L.  ed.  1084, 
28  Sup.  Ct.  Rep.  730;  Louisville  Trust  Co.  v.  Knott,  191  U.  S.  225,  48  L.  ed. 
159,  24  Sup.  Ct.  Rep.  119;  Blythe  v.  Hinkley,  173  U.  S.  501,  43  L.  ed.  783. 
19  Sup.  Ct.  Rep.  497;  United  States  ex  rel.  Mudsill  Mining  Co.  v.  Swan,  65 
Fed.  647,  13  C.  C.  A.  77,  31  U.  S.  App.  ]12. 


§  2003    APPELATE  JURISDICTION  OF  SUPREME  COURT       483 

the  judgment  he  has  recovered,  he  may  also  carry  the  case  to  the 
circuit  court  of  appeals  on  the  merits,  and  this  he  may  do  by  way 
of  cross  appeal  or  writ  or  error  if  the  defendant  has  taken  the 
case  there,  or  independently  if  the  defendant  has  carried  the 
case  to  this  court  on  the  question  of  jurisdiction  alone,  and  in  this 
instance  the  circuit  court  of  appeals  will  suspend  a  decision  upon 
the  merits  until  the  question  of  jurisdiction  has  been  determined. 
(5)  The  same  observations  are  applicable  where  a  plaintiff  ob- 
jects to  the  jurisdiction,  and  is,  or  both  parties  are,  dissatisfied 
with  the  judgment  on  the  merits.  (6)  In  every  case  in  which 
the  complaining  party  has  the  right  or  has  and  exercises  the  option 
to  carry  his  case  to  the  circuit  court  of  appeals  for  review,  that 
court  may  decide  the  question  of  jurisdiction  as  well  as  the  ques- 
tion on  the  merits,  for  the  power  of  that  court  to  certify  the 
question  of  jurisdiction  to  the  Supreme  Court  assumes  the  power 
to  decide  it."  7 

It  is  evident,  then,  that  if  the  jurisdiction  of  the  district  court 
is  put  in  issue  with  other  issues  on  the  merits,  then  an  election 
is  given  to  the  party  desiring  to  appeal.  He  may  have  the  ques- 
tion of  jurisdiction  alone  certified  directly  to  the  Supreme  Court, 
— or  he  may  appeal  the  entire  case  on  the  merits,  to  the  circuit 
court  of  appeals,  whereupon  that  court  may  either  determine  the 
jurisdictional  question  itself,  or  may  certify  it  to  the  Supreme 
Court  for  determination.8 

Whether  the  same  party  may  prosecute  two  appeals  from  the 
same  determination  of  his  suit,  having  the  question  of  jurisdiction 
certified  directly  to  the  Supreme  Court,  while  he  appeals  from  the 
decision  and  the  merits  to  the  circuit  court  of  appeals,  is  doubtful. 

7  See  also  New  Orleans  v.  Benjamin,  153  U.  S.  411,  38  L.  ed.  764,  14  Sup. 
Ct.  Rep.  905;   Evans-Snyder  Buel  Co.  v.  McCaskill,  41  C.  C.  A.  577,  101  Fed. 
658;   McLish   v.   Roff,   141   U.  S.  661,  35  L.  ed.  895,  12   Sup.  Ct.  Rep.   118; 
Harris  v.  Rosenberger,  145  Fed.  449,  13  L.R.A.(N.S.)    762,  76  C.  C.  A.  225; 
Gates  v.  Bucki,  4  C.  C.  A.   116,   12  U.   S.  App.   69,  53   Fed.  965;    Carter  v. 
Roberts,   177   U.  S.  500,  44  L.  ed.   863,  20   Sup.   Ct.   Rep.   713;    Reliable   In- 
cubator &  Brooder  Co.  v.  Stahl,  44  C.  C.  A.  657,  105  Fed.  667;   Northern  P. 
R.  Co.  v.  Glaspell,  1  C.  C.  A.  327,  4  U.  S.  App.  238,  49  Fed.  482;   Robinson 
v.  Caldwell,  165  U.  S.  361,  41  L.  ed.  746,  17  Sup.  Ct.  Rep.  343. 

8  Ibid. 


484        MOXTUOMKKY'S  MAXUAL  OF  FEDERAL  PROCEDURE     §  2005 

The  circuit  court  of  appeals  has  held  9  that  this  is  permissible,  but 
the  Supreme  Court  has  reached  the  opposite  conclusion.10 

§  2004.  Appeals  from  Final  Sentences  and  Decrees  in 
Prize  Causes.  The  second  clause  of  §  238  confers  upon  the  Su- 
preme Court  the  jurisdiction  of  appeals  from  all  final  decrees  in 
prize  causes.  The  amount  in  controversy  is  immaterial,  and  no 
certificate  of  the  district  judge  as  to  the  importance  of  the  par- 
ticular case  is  required.11 

§  2005.  Cases  Involving  the  Construction  or  Application 
of  the  United  States  Constitution.  Under  the  third  clause  of 
§  238,  the  district  court  must  have  actually  construed  or  applied 
the  Constitution  to  the  case,  or  must  have  declined  to  do  so  upon 
being  requested  so  to  do.12  The  mere  fact  that  the  Constitution 
iniglit  have  been  involved,  or  might  have  been  challenged,  if  it 
was  not  actually  so  involved  or  challenged,  does  not  vest  the 
Supreme  Court  with  jurisdiction.13 

The  clause  has  been  held  to  include  a  case  involving  the  con- 
stitutional power  of  Congress  over  the  navigable  waters  of  the 
United  States ;  14  a  case  involving  the  right  of  citizens  of  a  state 
to  vote  for  congressmen  of  the  United  States ;  15  a  case  in  which 
the  question  whether  the  complainants  are  engaged  in  Interstate 
Commerce  under  paragraph  3  of  §  8  of  article  1  of  the  Con- 
st it ution  is  involved.16 


9  Pullman  Palace  Car  Co.  v.  Central  Transportation  Co.  22  C.  C.  A.  246, 
39  U.  S.  App.  307,  76  Fed.  402. 

10  American  Sugar  Refining  Co.  v.  New  Orleans,  181  U.  S.  277,  45  L.  ed. 
859,  21  Sup.  Ct.  Rep.  646.    See  also  Robinson  v.  Caldwell,  165  U.  S.  359,  41  L. 
ed.  745,  17  Sup.  Ct.  Rep.  343;   Columbus  Const.  Co.  v.  Crane  Company,  174 
U.  S.  601,  43  L.  ed.  1103,  19  Sup.  Ct.  Rep.  721;   Union  &  Planters  Bank  v. 
Memphis,  189  U.  S.  74,  47  L.  ed.  714,  23  Sup.  Ct.  Rep.  604. 

11  Paquete  Habana,  175  U.  S.  677,  44  L.  ed.  320.  20  Sup.  Ct.  Rep.  290. 

12  Cornell  v.  Green,  163  U.  S.  75,  41  L.  ed.  76,  ]6  Sup.  Ct.  Rep.  969. 
i3\Yorld's  Columbian  Exposition  v.  United  States,  56  Fed.  654,  6  C.  C.  A. 

58;  Railroad  Company  v.  Amato,  144  U.  S,  465.  472.  36  L.  ed.  596,  12  Sup. 
C  t.  Rep.  740;  Snow  v.'  United  States,  118  U.  S.  346,  30  L.  ed.  207,  6  Sup.  Ct. 
Rep.  1059. 

l4Cummings  v.  Chicago,  188  U.  S.  410,  47  L.  ed.  525,  23  Sup.  Ct.  Rep.  472. 

15  Wiley  v.  Sinkler.  179  U.  S.  62.  45  L.  ed.  84,  21  Sup.  Ct.  Rep.  17. 

la.Macdn  v.  Georgia  Pkg.  Co.  60  Fed.  781.  9  C.  C.  A.  202. 


§    2008         APPELLATE  JURISDICTION  OF  SUPREME  COURT  485 

§  2006.  Constitutionality  of  United  States  Law,  or  Valid- 
ity or  Construction  of  Treaty  Drawn  in  Question.  As  in 

cases  included  under  the  preceding  clause,  the  questions  must  be 
actually  involved,  and  the  court  must  have  been  required  to  pass 
upon  them  in  reaching  this  decision.17  Allegations  that  the  ques- 
tions were  involved,  if  not  supported  by  the  facts  of  the  case,  do  not 
vest  the  Supreme  Court  with  jurisdiction.18  Questions  of  fact, 
although  the  facts  be  the  outgrowth  of  the  operation  of  a  treaty 
or  statute,  do  not  confer  jurisdiction  upon  the  Supreme  Court,  as 
the  validity  or  construction  of  a  statute  or  treaty,  or  the  consti- 
tutionality of  a  United  States  law,  involves  only  questions  of 
law.19 

§  2007.  State  Law  or  Constitution  Claimed  to  Contravene 
the  Constitution  of  the  United  States.  The  general  requirement 
and  propositions  of  law  applicable  to  this  clause  are  similar  to 
those  applicable  to  the  two  preceding  clauses,  and  will  be  discussed 
jointly  with  them  in  the  succeeding  sections. 

"A  state  law"  includes  municipal  ordinances  as  the  acts  of  a 
state  perpetrated  through  its  properly  constituted  instrumentality, 
and  if  the  constitutionality  of  such  ordinances  is  involved  the 
case  comes  within  the  purview  of  this  clause.20  However,  a  state 
law  which  is  void  under  the  state  Constitution,  as  well  as  being  in 
contravention  of  the  Constitution  of  the  United  States,  cannot 
raise  the  question  so  as  to  give  the  Supreme  Court  jurisdiction.21 

§  2008.  Clauses  three,  four,  and  five  of  §  238,  Judicial 
Code.  The  questions  included  under  the  3d,  4th,  and  5th  clauses 

"Muse  v.  Arlington  Hotel  Company,  168  U.  S.  430,  42  L.  ed.  533,  18  Sup. 
Ct.  Rep.  109. 

18  Budzisz  v.  Illinois  Steel  Co.  170  U.  S.  41,  42  L.  ed.  941,  18  Sup.  Ct.  Rep. 
503. 

19  In  re  Newman,  79  Fed.  615;  Bordmeyer  v.  Idler,  359  U.  S.  408,  40  L.  ed. 
19!),  16  Sup.  Ct.  Rep.  34. 

20  Pike's  Peak  Power  Co.  v.  Colorado  Springs,  105  Fed.  1,  44  C.  C.  A.  333 ; 
Dawson  v.  Columbia  Ave.  Savings  Fund,  etc.,  Co.  102  Fed.  200,  42  C.  C.  A. 
2o8;  City  R.  R.  Co.  v.  Citizens  St.  R.  R.  Co.  166  U.  S.  557,  41  L.  ed.  1114,  17 
Sup.  Ct.  Rep.  053:  Walla  Walla  v.  Walla  Walla  Water  Co.  172  U.  S.  1,  43  L. 
ed.  341,  19  Sup.  Ct.  Rep.  77;   St.  Paul  Gas  Light  Co.  v.  St.  Paul,  181  U.  S. 
142,   45  L.  ed.   788,   21   Sup.   Ct.  Rep.  575;    Davis   Mfg.   Co.   v.   Los  Angeles, 
18!)  U.  S.  207,  47  L.  ed.  778,  23  Sup.  Ct.  Rep.  498;  Owensboro  v.  Owensboro 
Water  Works,  115  Fed.  318,  53  C.  C.  A.  146. 

21  Indianapolis  v.  Central  Trust  Co.  83  Fed.  529,  27  C.  C.  A.  580. 


486        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2008 

of  §  238  relating  to  the  Constitution,  treaties,  and  laws  of  the 
United  States,  are  so  closely  related,  and  partake  so  largely  of  the 
same  nature  that  they  have  been  construed  and  discussed  together 
by  the  courts,  and  many  of  the  rules  and  propositions  of  law  which 
have  been  laid  down  apply  to  them  all. 

The  Supreme  Court  has  said  :  "When  our  jurisdiction  is  invoked 
under  §  5  ...  on  the  ground  that  the  case  falls  within  the 
fourth,  fifth,  or  sixth  of  the  classes  of  cases  therein  enumerated, 
it  must  appear  that  a  title,  right,  privilege,  or  immunity  was 
claimed  under  the  Constitution,  and  a  definite  issue  in  respect  to 
the  possession  of  the  right  must  be  distinctly  deducible  from  the 
record ;  or  that  the  constitutionality  of  the  particular  law  or  the 
validity  or  construction  of  the  particular  treaty  was  necessarily 
and  directly  drawn  in  question;  or  that  the  Constitution  or  law 
of  a  state  was  distinctly  claimed  to  be  in  contravention  of  the 
Constitution  of  the  United  States." 

Where  an  appeal  or  writ  of  error  is  taken  direct  to  the  Supreme 
Court  under  clauses  3,  4,  or  5  of  §  238,  Judicial  Code,  the  Su- 
preme Court  acquires  jurisdiction,  not  only  of  the  questions  speci- 
fied in  that  section,  but  of  all  the  questions  involved  in  the  entire 
case.  This  is  shown  by  the  fact  that  under  §  238,  where  an  appeal 
or  writ  of  error  is  taken  direct  to  the  Supreme  Court  in  a  case 
in  which  the  jurisdiction  of  the  district  court  is  in  issue,  it  is 
specifically  directed  that  the  question  of  jurisdiction  alone  shal-1 
be  certified  to  the  Supreme  Court;  and  there  is  no  such  limita- 
tion prescribed  in  regard  to  any  of  the  other  cases  in  which  juris- 
diction on  appeal  or  error  is  conferred  by  §  238. 22  j 

Upon  review  under  these  clauses  a  certificate,  as  required  by 
clause  (1)  is  unnecessary,  and  of  no  effect  The  questions  raised 
under  any  of  the  clauses  of  §  238  must  be  real,  and  must  represent 
substantial  controversies,  not  only  as  to  the  principles  involved, 
but  as  to  the  relation  of  the  party  by  whom  they  are  raised,  to 
them.23 

Under  §  238  only  those  questions  which  the  record  shows  to 

22  Homer  v.  United  States,  143  U.  S.  570,  36  L.  ed.  266,  12  Sup.  Ct.  Rep. 
522. 

23  Lamposas  v.  Bell,  180  U.  S.  284. 


§    2011         APPELLATE  JURISDICTION  OF  SUPREME  COURT  487 

have  been  raised  in  the  lower  court  are  available  to  confer  juris- 
diction in  the  Supreme  Court,  and  an  assignment  of  errors  cannot 
be  availed  of  to  import  questions  into  a  cause  which  the  record  does 
not  so  show  to  have  been  raised. 

§  2009.  Appeal  and  Error,  Circuit  Courts  of  Appeal  to 
Supreme  Court. 

§  241,  Judicial  Code?  36  Stat.  at  L.  1157,  Comp.  St. 
1911,  p.  229,  1912  Supp.  F.  8.  A.  v.  1,  p.  232.  "In  any  case 
in  which  the  judgment  or  decree  of  the  circuit  court  of  ap- 
peals is  not  made  final  by  the  provisions  of  this  title,  there 
shall  be  of  right  an  appeal  or  writ  of  error  to  the  Supreme 
Court  of  the  United  States  where  the  matter  in  controversy 
shall  exceed  $1,000  besides  costs." 

§  2010.  Certiorari  by  Supreme  Court  in  Decisions  Other- 
wise Final  in  Circuit  Courts  of  Appeal. 

§  240,  Judicial  Code*  36  Stat.  at  L.  1157,  Comp.  St.  1911, 
p.  228,  1912  Supp.  F.  8.  A.  v.  1,  p.  232.  aln  any  case,  civil 
or  criminal,  in  which  the  judgment  or  decree  of  the  circuit 
court  of  appeals  is  made  final  by  the  provisions  of  this  title, 
it  shall  be  competent  for  the  Supreme  Court  to  require,  by 
certiorari  or  otherwise  upon  the  petition  of  any  party  thereto, 
any  such  case  to  be  certified  to  the  Supreme  Court  for  its 
review  and  determination  with  the  same  power  and  authority 
in  the  case  as  if  it  had  been  carried  by  appeal  or  writ  of 
error  to  the  Supreme  Court." 

§  2011.  Certification  to  Supreme  Court  by  Circuit  Court 
of  Appeals. 

§  239,  Judicial  Code*  36  Stat.  at  L.  1157,  Comp.  St. 
1911,  p.  228,  1912  Supp.  F.  S.  A.  v.  1,  p.  231.  "In  any  case 
within  its  appellate  jurisdiction  as  defined  in  §  128,  the  cir- 
cuit court  of  appeals  at  any  time  may  certify  to  the  Supreme 
Court  of  the  United  States  any  question  or  propositions  of 
law  concerning  which  it  desires  the  instruction  of  that  court 
for  its  proper  decision;  and  thereupon  the  Supreme  Court 

*  Drawn  from  §  6  of  act  of  March  3,  1891,  ch.  517,  26  Stat.  at  L.  828,  Rose's 
Code,  §   1904,  Comp.  St.   1901,  p.  549,  4  F.  S.  A.  409,  which  is  repealed  by 
§  297,  Judicial  Code. 

c  For  Annotation  of  this  §  240,  Judicial  Code,  see  footnote  «,  ante,  our  §  840. 

*  For  Annotation  of  this  §  239,  Judicial  Code,  see  footnote  «,  ante,  our  §  840. 


488        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2012 

may  either  give  its  instruction  on  the  question  and  proposi- 
tions certified  to,  which  shall  be  binding  upon  the  circuit 
court  of  appeals  in  such  case,  or  it  may  require  that  the  whole 
record  and  cause  be  sent  up  to  it  for  its  consideration,  and 
thereupon  shall  decide  the  whole  matter  in  controversy  in 
the  same  manner  as  if  it  had  been  brought  there  for  review 
by  writ  of  error  or  appeal." 

§  2012.  Appeals  from  Court  of  Claims. 

§  242,.  Judicial  Code*  36  Stat.  at  L.  1157,  Comp.  St. 
1911,  p.  229, 1912  Supp.  F.  8.  A.  v.  1,  p.  232.  "An  appeal  to 
the  Supreme  Court  shall  be  allowed  on  behalf  of  the  United 
States  from  all  judgments  of  the  court  of  claims,  adverse 
to  the  United  States,  and  on  behalf  to  the  plaintiff  in  any 
case  where  the  amount  in  controversy  exceeds  three  thousand 
dollars,  or  where  his  claim  is  forfeited  to  the  United  States 
by  the  judgment  of  said  court  as  provided  in  §  172." 

A  jo  gtifjoC)  ^i'l-jii^J  Hi  If 
§  172,  Judicial  Code,*  36  Stat.  at  L.  1141,  Comp.  St. 

1911,  p.  205,  1912  Supp.  F.  S.  A.  v.  1,  p.  207.  "Any  person 
who  corruptly  practises  or  attempts  to  practise  any  fraud 
against  the  United  States  in  the  proof,  statement,  establish- 
ment, or  allowance  of  any  claim  or  any  part  of  any  claim 
against  the  United  States,  shall,  ipso  facto,  forfeit  the  same 
to  the  government ;  and  it  shall  be  the  duty  of  the  court  of 
claims  in  such  cases  to  find  specifically  that  such  fraud  was 
practised  or  attempted  to  be  practised,  and  thereupon  to  give 
judgment  that  such  claim  is  forfeited  to  the  government  and 
that  the  claimant  be  forever  barred  from  prosecuting  the 
same." 

--•  !%      '  ''. 

§  248,  Judicial  Code,K  36  Stat.  at  L.  1157,  Comp.  St. 
1911,  p.  229,  1912  Supp.  F.  8.  A.  v.  1,  p.  232.  "All  appeals 
from  the  court  of  claims  shall  be  taken  within  ninety  days  af- 
ter the  judgment  is  rendered,  and  shall  be  allowed,  under 
such  regulations  as  the  Supreme  Court  may  direct." 

e  Re-enacting  §  707,  R.  S.  Rose's  Code,  §  38,  Foster's  Fed.  Prac.  (4th  ed.)  pp. 
287,  1740,  1993,  2046,  Comp.  St.  1901,  p.  574,  4  F.  S.  A.  467,  which  section  is 
repealed  by  §  297,  Judicial  Code. 

f  Re-enacting  §  1086,  R.  S.  Rose's  Code,  §  1468,  Foster's  Fed.  Prac.  (4th  ed.) 
p.  1737,  Comp.  St.  1901,  p.  745,  2  F.  S.  A.  71,  which  section  is  repealed  by 
§  297,  Judicial  Code. 

«  Re-enacting  §  708,  R.  S.  Rose's  Code,  §  1907,  Foster's  Fed.  Prac.  (4th  ed.) 
pp.  287,  2062,  2063,  Comp.  St.  1901,  p.  575,  4  F.  S.  A.  467,  which  is  repealed 
by  §  297,  Judicial  Code. 


§  2014    APPELLATE  JURISDICTION  OF  SUPREME  COURT        480 

§  2013.  Appeal  and  Error  from  Courts  of  Porto  Rico. 

§  244,  Judicial  Code*  36  8 tat.  at  L.  1157,  Comp.  St. 
1911,  p.  229*  1912  Supp.  F.  8.  A.  v.  I,  p.  233.  "Writs  of 
error  and  appeals  from  the  final  judgments  and  decree  of  the 
supreme  court  of,  and  the  United  States  district  court  for, 
Porto  Rico,  may  be  taken  and  prosecuted  to  the  Supreme 
Court  of  the  United  States  in  any  case  where  is  involved  the 
validity  of  any  copyright,  or  in  which  is  drawn  in  question  the 
validity  of  a  treaty  or  statute  of,  or  authority  exercised  under, 
the  United  States,  or  wherein  the  Constitution  of  the  United 
States,  or  a  treaty  thereof,  or  an  act  of  Congress  is  brought 
in  question  and  the  right  claimed  thereunder  is  denied, 
without  regard  to  the  sum  or  value  of  the  matter  in  dispute ; 
and  in  all  other  cases  in  which  the  sum  or  value  of  the 
matter  in  dispute,  exclusive  of  costs,  exceeds  the  sum  or  value 
of  five  thousand  dollars.  Such  writs  of  error  and  appeals 
shall  be  taken  within  the  same  time,  and  in  the  same  manner, 
and  under  the  same  regulation,  as  writs  of  error  and  appeals 
are  taken  to  the  Supreme  Court  of  the  United  States  from 
the  district  court." 

§  2014.  Appeal  and  Error  from  Supreme  Court  of  Hawaii. 

§  246,  Judicial  Code,1  36  Stat.  at  L.  1158,  Comp.  St. 
1911,  p.  230,  1912  Supp.  F.  S.  A.  v.  1,  p.  233.  "Writs  of 
error  and  appeals  from  the  final  judgments  and  decrees  of 
the  Supreme  Court  of  a  territory  of  Hawaii  may  be  taken 
and  prosecuted  to  the  Supreme  Court  of  the  United  States, 
within  the  same  time,  under  the  same  regulations,  in  the  same 
manner,  and  in  the  same  classes  of  cases,  in  which  writs  of 
error  and  appeals  from  the  final  judgments  and  decrees  of  the 
highest  court  of  the  state  in  which  a  decision  in  the  suit  could 
be  had,  may  be  taken  and  prosecuted  to  the  Supreme  Court  of 
the  United  States  under  the  provision  of  §  237 ;  and  also 
in  all  cases  wherein  the  amount  involved,  exclusive  of  costs,  . 
to  be  ascertained  by  the  oath  of  either  party  or  of  other 
competent  witnesses,  exceeds  the  sum  or  value  of  five  thou- 
sand dollars." 

h  Drawn  from  §  35  of  the  Organic  Act  of  Porto  Rico,  of  April  12,  1900, 
ch.  191,  31  Stat.  at  L.  77,  Rose's  Code,  §§  1672,  2095,  5  F.  S.  A.  773. 

i  Re-enacting  act  of  April  30,  1900,  ch.  339,  31  Stat.  at  L.  158,  3  F.  S.  A. 
200.  as  amended  by  act  of  March  3,  1908,  35  Stat.  at  L.  838,  Foster's  Fed. 
Prac.  (4th  ed.)  p.  230,  1909  Supp.  F.  S.  A.  152. 


490        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2016 

§  2015.  Appeal  and  Error  from  District  Courts  of  Alaska. 
§  247,  Judicial  Code,1  36  Stat.  at  L.  1158,  Comp.  St.  1911, 
p.  230,  1912  Supp.  F.  S.  A.  v.  1,  p.  234.  "Appeals  and 
writs  of  error  may  be  taken  and  prosecuted  from  final  judg- 
ment and  decree  of  the  district  court  for  the  district  of 
Alaska  or  for  any  division  thereof,  direct  to  the  Supreme 
Court  of  the  United  States  in  the  following  cases:  In  prize 
cases;  and  in  all  cases  which  involve  the  construction  or 
application  of  the  Constitution  of  the  United  States,  or  in 
which  the  constitutionality  of  any  law  of  the  United  States 
or  the  validity  or  construction  of  any  treaty  made  under  its 
authority  is  drawn  in  question,  or  in  which  the  Constitution 
or  law  of  a  state  is  claimed  to  be  in  contravention  of  the 
Constitution  of  the  United  States.  Such  writs  of  error  and 
appeal  shall  be  taken  within  the  same  time,  and  in  the  same 
manner,  and  under  the  same  regulation,  as  writs  of  error 
and  appeals  are  taken  from  the  district  court  to  the  Supreme 
Court." 

§  2016.  Appeal  and  Error  from  the  Supreme  Court  of  the 
Philippine  Islands. 

§  248,  Judicial  Code*  36  Stat.  at  L.  1158,  Comp.  St. 
1911,  p.  230,  1912  Supp.  F.  S.  A.  v.  1,  p.  234.  "The  Su- 
preme Court  of  the  United  States  shall  have  jurisdiction  to 
review,  revise,  reverse,  modify,  or  affirm  the  final  judgment 
and  decree  of  the  supreme  court  of  the  Philippine  Islands  in 
all  actions,  cases,  causes,  and  proceedings  now  pending  therein 
or  hereafter  determined  thereby,  in  which  the  Constitution, 
or  any  statute,  treaty,  title,  right,  or  privilege  of  the  United 
States  is  involved,  or  in  causes  in  which  the  value  in  con- 
troversy exceeds  twenty-five  thousand  dollars,  or  in  which 
the  title  or  possession  of  real  estate  exceeding  in  value  the 
sum  of  twenty-five  thousand  dollars  to  be  ascertained  by  the 
oath  of  either  party  or  of  other  competent  witnesses,  is  in- 
volved or  brought  in  question ;  and  such  final  judgments  or 
decrees  may  and  can  be  reviewed,  revised,  reversed,  modified, 
or  affirmed  by  said  supreme  court  on  appeal  or  writ  of  error 
by  the  party  aggrieved,  within  the  same  time,  in  the  same 
manner,  under  the  same  regulations,  and  by  the  same  pro- 

J  Drawn  from  §  202  of  the  Criminal  Code  of  Alaska,  1  F.  S.  A.  370,  and 
§  504,  of  the  C.  C.  of  Alaska,  1  F.  S,  A.  147. 

fc  Re-enacting  §  10  of  act  of  July  1,  1902,  ch.  1369,  32  Stat.  at  L.  691, 
Foster's  Fed.  Prac.  (4th  ed.)  pp.  2000,  2046,  5  F.  S.  A.  722. 


§    2018        APPELLATE  JURISDICTION  OF  SUPREME  COURT  491 

cedure,   so  far  as   applicable,   as  the  final  judgments  and 
decrees  of  the  district  courts  of  the  United  States." 

§  2017.  Jurisdiction  When  Territory  Admitted  after  Judg- 
ment Rendered. 

§  249,  Judicial  Code,1  36  Stat.  at  L.  1158,  Comp.  St. 
1911,  p.  231,1912  Supp.  F.  8.  A.  v.l,  p.  235.  "In  all  cases 
where  the  judgment  or  -decree  of  any  court  of  a  territory 
might  be  reviewed  by  the  Supreme  Court  on  writ  of  error  or 
appeal,  such  writ  of  error  or  appeal  may  be  taken,  within  the 
time  and  in  the  manner  provided  by  law,  notwithstanding 
such  territory  has,  after  such  judgment  or  decree,  been  ad- 
mitted as  a  state;  and  the  Supreme  Court  shall  direct  the 
mandate  to  such  court  as  the  nature  of  the  writ  of  error  or  ap- 
peal required." 

§  2018.  Appeal  and  Error  from  the  Court  of  Appeals  for 
the  District  of  Columbia. 

§  250,  Judicial  Code,™  36  Stat.  at  L.  1159,  Comp.  St. 
1901,  p.  231,  1912  Supp.  F.  8.  A.  v.  1,  p.  235.  "Any  final 
judgment  or  decree  of  the  court  of  appeals  of  the  District  of 
Columbia  may  be  re-examined  and  affirmed,  reversed,  or 
modified  by  the  Supreme  Court  of  the  United  States,  upon 
writ  of  error  or  appeal,  in  the  following  cases : 

"First.  In  cases  in  which  the  jurisdiction  of  the  trial  court 
is  in  issue ;  but  when  any  such  case  is  not  otherwise  review- 
able  in  such  Supreme  Court,  then  the  question  of  jurisdic- 
tion alone  shall  be  certified  to  said  Supreme  Court  for  de- 
cision. 

"Second.    In  prize  causes. 

"Third.  In  cases  involving  the  construction  or  application 
of  the  Constitution  of  the  United  States,  or  the  constitution- 
ality of  any  law  of  the  United  States,  or  the  validity  or  con- 
struction of  any  treaty  made  under  its  authority. 

"Fourth.  In  cases  in  which  the  Constitution,  or  any  law 
of  a  state,  is  claimed  to  be  in  contravention  of  the  Consti- 
tution of  the  United  States. 

"Fifth.    In  cases  in  which  the  validity  of  any  authority 

1  Re-enacting  §  703,  R.  S.  Comp.  St.  1901,  p.  572,  4  F.  S.  A.  461,  which 
section  is  repealed  by  §  297,  Judicial  Code. 

»»  Previous  to  this  appeals  were  taken  in  the  same  manner  as  from  the 
circuit  courts.  See  §  705,  R.  S.  Foster's  Fed.  Prac.  (4th  ed.)  p.  2062,  Comp. 
St.  1901,  p.  573,  4  F.  S.  A.  462,  which  is  repealed  by  §  297,  Judicial  Code. 


492         MONTGOMKKY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2019 

exercised  under  the  United  States,  or  the  existence  or  scope 
of  any  power  or  duty  of  an  officer  of  the  United  States,  is 
drawn  in  question. 

"Sixth.  In  cases  in  which  the  construction  of  any  law  of 
the  United  States  is  drawn  in  question  by  the  defendant. 

"Except  as  provided  in  the  next  succeeding  section,  the 
judgments  and  decrees  of  said  court  of  appeals  shall  be  final 
in  all  cases  arising  under  the  patent  laws,  the  revenue  laws, 
the  criminal  laws,  and  in  admiralty  cases;  and,  except  as 
provided  in  the  next  succeeding  section,  the  judgments  and 
decrees  of  said  court  of  appeals  shall  be  final  in  all  cases  not 
reviewable  as  hereinbefore  provided. 

"Writs  of  error  and  appeals  shall  be  taken  within  the 
same  time,  in  the  same  manner,  and  under  the  same  regu- 
lation, as  writs  of  error  and  appeals  are  taken  from  the  dis- 
trict courts  of  appeals  to  the  Supreme  Court  of  the  United 
States." 


§  2019.  Review  of  Final  Decisions  of  the  Court  of  Appeals 
of  the  District  of  Columbia,  by  the  Supreme  Court. 

§  251,  Judicial  Code,"  36  Stat  at  L.  1159,  Comp.  St. 
1911,  p.  232, 1912  Supp.  F.  S.  A.  v.  1,  p.  236.  "In  any  case 
in  which  the  judgment  or  decree  of  said  court  of  appeals  is 
made  final  by  the  section  last  preceding,  it  shall  be  competent 
for  the  Supreme  Court  of  the  United  States  to  require,  by 
certiorari  or  otherwise,  such  case  to  be  certified  to  it  for  its 
review  and  determination  with  the  same  power  and  authority 
in  the  case  as  if  it  had  been  carried  by  writ  of  error  or  appeal 
to  said  Supreme  Court.  It  shall  also  be  competent  for  said 
court  of  appeals  in  any  case  in  which  its  judgment  or  decree 
is  made  final  under  the  section  last  preceding,  at  any  time 
to  certify  to  the  Supreme  Court  of  the  United  States  any 
questions  or  propositions  of  law  concerning  which  it  desires 
the  instruction  of  that  court  for  their  proper  division ;  and 
thereupon  the  Supreme  Court  may  either  give  its  instruc- 
tions on  the  questions  and  propositions  certified  to  it,  which 
shall  be  binding  upon  said  court  of  appeals  in  such  case,  or 
it  may  require  that  the  whole  record  and  cause  be  sent  up 
to  it  for  its  consideration,  and  thereupon  shall  decide  the  whole 

n  The  part  of  the  section  authorizing  oertiorari  is  from  act  of  March  3, 
1897,  ch.  390,  29  Stat.  at  L.  692.  Foster's  Fed.  Prac.  (4th  ed.)  pp.  880,  1194, 
li;)8.  the  part  referring  to  certifying  questions  is  new  legislation  as  concerns 
the  District  of  Columbia. 


§    2021         APPELLATE  JURISDICTION  OF  SUPREME  COURT  493 

matter  in  controversy  in  the  same  manner  as  if  it  had  been 
brought  here  for  review  by  writ  of  error  or  appeal." 

§  2020.  Appeals  from  Bankruptcy  Courts. 

Judicial  Code,  §  252°  36  Stat.  at  L.  1159,  1912  Supp. 
F.  8,  A.  v.  1,  p.  237.  "The  Supreme  Court  of  the  Unit- 
ed States  is  hereby  invested  with  appellate  jurisdiction  of 
controversies  arising  in  bankruptcy  procedure  from  the 
courts  of  bankruptcy  from  which  it  has  appellate  jurisdiction 
in  other  cases ;  and  shall  exercise  a  like  jurisdiction  from 
courts  of  bankruptcy  not  within  any  organized  circuit  of  the 
United  States  and  from  the  supreme  court  of  the  District 
of  Columbia. 

"An  appeal  may  be  taken  to  the  Supreme  Court  of  the 
United  States  from  any  final  decision  of  a  court  of  appeals 
allowing  or  rejecting  a  claim  under  the  laws  relating  to  bank- 
ruptcy, under  such  rules  and  within  such  time  as  may  be 
prescribed  by  the  said  Supreme  Court  in  the  following  cases 
and  no  other : 

"1st.  Where  the  amount  in  controversy  exceeds  the  sum  of 
$2,000,  and  the  question  involved  is  one  which  might  have 
been  taken  on  appeal  or  writ  of  error  from  the  highest  court 
of  the  state  to  the  Supreme  Court  of  the  United  States ;  or 

"2d.  Where  some  justice  of  the  Supreme  Court  shall 
certify  that  in  his  opinion  the  determination  of  the  question 
involved  in  the  allowance  or  rejection  of  such  claim  is  essen- 
tial to  a  uniform  construction  of  the  laws  relating  to  bank- 
ruptcy throughout  the  United  States. 

"Controversies  may  be  certified  to  the  Supreme  Court  of 
the  United  States  from  other  courts  of  the  United  States, 
and  the  former  court  may  exercise  jurisdiction  thereof,  and 
may  issue  writs  of  certiorari  pursuant  to  the  provisions  of 
the  United  States  laws  now  in  force,  or  such  as  may  be  here- 
after enacted." 

§  2021.  Mandamus  to   Revise   and   Correct   Proceedings 
in  Lower  Courts. 

§  234,  Judicial  Code*  36  Stat.  at  L.  1156,  Comp.  St. 
1911,  p.  227,  1912  Supp.  F.  S.  A.  v.  1,  p.  230.  "The  Su- 

o  Re-enacting  §§  24  and  25  of  the  Bankruptcy  Act  of  July  1,  1898,  Rose's 
Code,  §§  2310.  2312.  Foster's  Fed.  Prac.  (4th  ed.)  p.  1850,  Comp.  St.  1901, 
p.  3431,  1  F.  S.  A.  593. 

P  Re-enacting  §  688,  R.  S.  Rose's  Code,  §  844,  Foster's  Fed.  Prac.  (4th  ed.) 
pp.  79,  115(5-73-75-76-77,  1866,  Comp.  St.  1901,  p.  565,  4  F.  S.  A.  439,  which 
section  is  repealed  by  §  297,  Judicial  Code. 


494 

preme  Court  shall  have  power  to  issue  writs  of  prohibition  to 
the  district  courts,  when  proceeding  as  courts  of  admiralty 
and  maritime  jurisdiction ;  and  writs  of  mandamus,  in  cases 
warranted  by  the  principles  and  usages  of  law,  to  any  courts 
appointed  under  the  authority  of  the  United  States,  or  to 
persons  holding  office  under  the  authority  of  the  United 
States,  where  a  state,  or  an  ambassador,  or  other  public 
minister,  or  a  consul,  or  vice  consul  is  a  party." 

§  262,  Judicial  Code*  36  Stat.  at  L.  1162,  Comp.  St. 
1911,  p.  235,  1912  Supp.  F.  8.  A.  v.  1,  p.  241.  "The  Su- 
preme Court  and  the  district  courts  shall  have  power  to  issue 
writs  of  scire  facias.  The  Supreme  Court,  the  circuit  courts 
of  appeals,  and  the  district  courts  shall  have  power  to  issue  all 
writs  not  specifically  provided  for  by  statute,  which  may  be 
necessary  for  the  exercise  of  their  respective  jurisdictions, 
and  agreeable  to  the  usages  and  principles  of  law." 

Under  these  provisions  (formerly  §§  688  and  716,  II.  S.)  the 
Supreme  Court  may  revise  and  correct  district  court  decisions  by 
mandamus,  but  only  in  cases  where  the  relief  cannot  be  obtained 
by  appeal  or  error.24 

Mandamus  will  lie  to  compel  a  district  court  to  take  jurisdic- 
tion of  a  proper  case,25  or  to  remand  a  cause  improperly  removed, 
if  the  defect  appears  on  the  face  of  the  record,26  and  it  is  from  § 
262  that  the  Supreme  Court  derives  its  power  to  issue  a  writ  of 
certiorari  upon  suggestion  of  diminution  of  the  record  on  ap- 
peal. 

24  In  re  Pollitz,  206  U.  S.  323,  51  L.  ed.  1081,  27  Sup.  Ct.  Rep.  729;   Ex 
parte  Harding,  219  U.  S.  363,  55  L.  ed.  252,  31  Sup.  Ct.  Rep.  324,  37  L.R.A. 
(N.S.)    392. 

25  In   re   Pollitz,   206   U.   S.   323,   51   L.   ed.   1081,   27    Sup.   Ct.   Rep.   729; 
Grossmayer,  Petitioner,  177  U.  S.  48,  44  L.  ed.  665,  20  Sup.  Ct.  Rep.  535. 

26  In  re  Winn,  213  U.  S.  458,  53  L.  ed.  873,  29  Sup.  Ct.  Rep.  515. 

«  For  Annotation  of  this  §  262,  Judicial  Code,  see  footnote   d}  ante,  our 
§  1054. 


CHAPTER  40. 

APPELLATE  JURISDICTION  OF  CIRCUIT  COURT  OF  APPEALS. 

Sec. 

2030.  In  General. 

2031.  Appeal  and  Error  from  District  Courts  to  Circuit  Court  of  Appeals. 

2032.  Appeals    from    Interlocutory    Orders    in    Injunction    and    Receivership 

Proceedings  in  District  Courts. 

2033.  Appellate  and  Supervisory  Jurisdiction  in  Bankruptcy  Cases. 

2034.  Appeal  and  Error  from  the  United  States  Court  for  China. 

2035.  Appeals  and  Writs  of  Error  from  District  Court  for  Alaska. 

2036.  Place  of  Hearing  of  Appeals  and  Writs  of  Error  from  Alaska. 

2037.  Appellate  Jurisdiction  from  District  Courts  Canal  Zone. 

2038.  Powers  and  Duties  of  Judges  upon  Appeal. 

§  2030.  In  General.  The  jurisdiction  of  the  circuit  courts  of 
appeals  is  wholly  appellate,  and  is  governed  by  chapter  6,  Judicial 
Code,  §§  128  et  seq.,  which  sections  are  largely  re-enactments  of 
the  act  of  Mar.  3,  1891,  Comp.  St.  1901,  p.  547,  4  F.  S.  A.  395. 

The  jurisdiction  includes  not  only  appeals  and  writs  of  error 
from  certain  final  decisions  in  district  courts,1  but  also  appeals 
from  interlocutory  orders  granting,  refusing,  dissolving,  or  re- 
fusing to  dissolve  an  injunction,  or  appointing  a  receiver,2  and 
appeals  and  writs  of  error  from  the  United  States  court  for 
China,8  appeals  and  writs  of  error  in  certain  cases  from  the 
district  courts  of  Hawaii,4  Alaska,6  and  appellate  supervision  of 
bankruptcy  cases,6  and  in  the  fifth  circuit  from  final  judgments 
and  decrees  of  the  district  courts  in  the  Canal  Zone.7 


1  Infra,  §  2031.    «  Infra,  §  2032.    3  infra,  §  2034.    « Infra,  §  2031. 
5  Infra,  §  2035.    6  Infra,  §  2033.    1  Infra,  §  2037. 

495 


490        MOXTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2032 

§  2031.  Appeal  and  Error  from  District  Courts  to  Cir- 
cuit Court  of  Appeals. 

§  128,  Judicial  Code,*  36  Stat.  at  L.  1133,  Comp.  St. 
1911,  p.  193, 1912  Supp.  F.  S.  A.  v.  1,  p.  195.  "The  circuit 
court  of  appeals  shall  exercise  appellate  jurisdiction  to  re- 
view by  appeal  or  writ  of  error  final  decisions  in  district 
courts,  including-  the  United  States  district  court  of  Hawaii, 
in  all  cases  other  than  those  in  which  appeals  and  writs  of 
error  may  be  taken  direct  to  the  Supreme  Court,  as  provided 
in  §  238,  unless  otherwise  provided  by  law;  and  except  as 
provided  in  §§  239  and  240,  the  judgments  and  decrees  of 
the  circuit  courts  of  appeal  shall  be  final  in  all  cases  in  which 
the  jurisdiction  is  dependent  entirely  upon  the  opposite  par- 
ties to  the  suit  or  controversy,  being  aliens  and  citizens  of 
the  United  States,  or  citizens  of  different  states;  also  in  all 
cases  arising  under  the  patent  laws,  under  the  copyright 
laws,  under  the  revenue  laws,  and  under  the  criminal  laws, 
and  in  admiralty  cases." 

Final  judgments  and  decrees  appealable  from  district  courts 
to  the  circuit  court  of  appeal  are  determined  by  a  process  of  elim- 
ination, and  include  "all  final  decisions  in  district  courts,  in  all 
oases  other  than  those  in  which  appeals  and  writs  of  error  may  be 
taken  direct  to  the  Supreme  Court,  as  provided  in  §  238,8  unless 
otherwise  provided  by  law." 

§  2032.  Appeals  from  Interlocutory  Orders  in  Injunction 
and  Receivership  Proceedings  in  District  Courts. 

§  129,  Judicial  Code?  $6  Stat.  at  L.  1134,  Comp.  St. 

8  Supra,  §  2001. 

a  Re-enacting  part  of  §  6.  act  of  March  3,  3891,  26  Stat.  at  L.  828,  Rose's 
Code.  §  1904,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  1198,  1660,  1976,  1978.  11)87. 
3988.  2015,  2016,  2031,  2044,  2063,  2064,  Comp.  St.  1901,  p.  549,  4  F.  S.  A.  409. 

''Final  decision"  means  a  final  decision  which  was  then  appealable  under 
the  existing  law. 

North  American  Trading  Co.  v.  Smith,  93  Fed.  7,  35  C.  C.  A.  183.  Appel- 
late jurisdiction,  Four  Hundred  and  Forty-three  Cans  of  Frozen  Egg  Product 
v.  United  States,  226  U.  S.  172.  57  L.  ed.'  174,  33  Sup.  Ct.  Rep.  50,  reversing 
United  States  v.  Four  Hundred  and  Fortv-three  Cans  of  Frozen  Egg  Product. 
193  Fed.  589,  113  C.  C.  A.  457. 

Final  decisions  of  C.  C.  A.,  see  Missouri,  Kansas  &  Texas  Railway  Company 
v.  \Vulf,  226  U.  S.  570,  57  L.  ed.  355,  33  Sup.  Ct.  Rep.  135. 

Final  decisions  of  districts  courts,  In  re  Metropolitan  Trust  Co.  218  U 
S.  312,  54  L.  ed.  1051,  31  Sup.  Ct.  Rep.  18. 

1»  Re-enacting  §  7.  act  of  March  3,  1891,  31  Stat.  at  L.  660,  Rose's  Code, 
§§  1906,  2020  2056,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  689,  737,  759,  1013,  2015, 


§    2033  APPELLATE  JURISDICTION  OF  C.  C.  A.  407 

1911,  p.  194, 1912  Supp.  F.  8.  A.  v.  1,  p.  195.  "Where  upon 
a  hearing  in  equity  in  a  district  court,  or  by  a  judge  thereof 
in  vacation,  an  injunction  shall  be  granted,  continued,  re- 
fused, or  dissolved  by  an  interlocutory  order  or  decree,  or 
an  application  to  dissolve  an  injunction  shall  be  refused,  or 
an  interlocutory  order  or  decree  shall  be  made  appointing 
a  receiver,  an  appeal  may  be  taken  from  such  interlocutory 
order  or  decree  granting,  continuing,  refusing,  dissolving, 
or  refusing  to  dissolve  an  injunction,  or  appointing  a  re- 
ceiver to  the  circuit  court  of  appeals,  notwithstanding  an 
appeal  in  such  case  might,  upon  final  decree  under  the  stat- 
utes regulating  the  same,  be  taken  directly  to  the  Supreme 
Court:  Provided,  That  the  appeal  must  be  taken  within 
thirty  days  from  the  entry  of  such  order  or  decree,  and  it 
shall  take  precedence  in  the  appellate  court;  and  the  pro- 
ceedings in  other  respects  in  the  court  below  shall  not  be 
stayed  unless  otherwise  ordered  by  that  court,  or  the  ap- 
pellate court,  or  a  judge  thereof,  during  the  pendency  of 
such  appeal:  Provided,  however,  That  the  court  below  may, 
in  its  discretion,  require  as  a  condition  of  the  appeal  an  ad- 
ditional bond." 

§  2033.  Appellate  and  Supervisory  Jurisdiction  in  Bank- 
ruptcy Cases. 

§  130,  Judicial  Code?  36  8 tat.  at  L.  1134,  Comp.  St. 
1911,  p.  194,  1912  Supp.  F.  8.  A.  v.  1,  p.  196.  "The  circuit 
courts  of  appeals  shall  have  the  appellate  and  supervisory 
jurisdiction  conferred  upon  them  by  the  act  entitled,  'An 
Act  to  Establish  a  Uniform  System  of  Bankruptcy  through- 
out the  United  States,'  approved  July  1,  1898,  and  all  laws 
amendatory  thereof,  and  shall  exercise  the  same  in  the  man- 
ner therein  prescribed." 

This  section  is  only  declaratory  of  the  appellate  jurisdiction 

2042,  2064.  2089,  Comp.  St.  1901,  p.  550,  4  F.  S.  A.  422.  The  purpose  of  this 
section  is  to  save  the  parties  from  the  expense  of  further  litigation  should  the 
appellate  court  be  of  the  opinion  that  plaintiff  was  not  entitled  to  an  injunc- 
tion because  his  bill  had  no  equity  to  support  it..  Smith  v.  Vulean  Iron 
Works,  165  U.  S.  518,  41  L.  ed.  810,  17  Sup.  Ct.  Rep.  407.  In  Gen.  Jackson 
Co.  et  al.  v.  Gardiner  Inv.  Co.  200  Fed.  113,  118  C.  C.  A.  287;  Pioneer  Lace 
]\lfg.  Co.  v.  Dodd,  181  Fed.  688,  104  C.  C.  A.  586:  Pressed  Steel  Car  Co.  v. 
Chicago  &  A.  R.  Co.  192  Fed.  517,  113  C.  C.  A.  73. 

c  Referring  to  §§  24  and  25  of  the  Bankruptcy  Act,  Rose's  Code,  §§  2310, 
2312,  Foster's  Fed.  Prac.  (4th  ed.)  p.  1850,  Comp!  St.  1901,  p.  3431,  1  F.  S.  A. 
593. 

Montg.— 32. 


498        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2035 

conferred  upon  the  circuit  court  of  appeals  by  §§  24  and  25  of 
the  bankruptcy  act  of  1898,  and  for  a  full  treatment  of  this 
jurisdiction  we  refer  to  that  act  and  to  the  various  works  on  bank- 
ruptcy. 

§  2034.  Appeal  and  Error  from  the  United  States  Court 
for  China. 

§  131,  Judicial  Code?  36  8 tat.  at  L.  1134,  Comp.  St. 
1911,  p.  194, 1912  Supp.  F.  S.  A.  v.  1,  p.  196.  "The  circuit 
court  of  appeals  for  the  ninth  circuit  is  empowered-  to  hear 
and  determine  writs  of  error  and  appeals  from  the  United 
States  court  for  China  as  provided  in  the  act  entitled,  'An 
Act  Creating  a  United  States  Court  for  China  and  Prescrib- 
ing the  Jurisdiction  Thereof/  approved  June  30,  1906." 

This  section,  like  the  preceding  one,  is  merely  declaratory  of 
the  appellate  jurisdiction  conferred  by  §  3  of  the  act  referred  to. 

.';.  hi    i:VK'!ii.':'-./.:;    ;     -  \.  ^  '' : ''  p'/V    .  it  •'<•-  V.i  ':  ic.'l ' 

§  2035.  Appeals  and  Writs  of  Error  from  District  Court 
for  Alaska. 

§  134,  Judicial  Code,*  36  Stat.  at  L.  1134,  Comp.  St. 
1911,  p.  195,  1912  Supp.  F.  S.  A.  v.  1,  p.  197.  "In  all  cases 
other  than  those  in  which  a  writ  of  error  or  appeal  will  lie  di- 
rect to  the  Supreme  Court  of  the  United  States  as  provided  in 
§  247,  in  which  the  amount  involved  or  the  value  of  the 
subject-matter  in  controversy  shall  exceed  five  hundred  dol- 
lars, and  in  all  criminal  cases,  writs  of  error  and  appeals 
shall  lie  from  the  district  court  for  Alaska  or  from  any  divi- 
sion thereof  to  the  circuit  court  of  appeals  for  the  ninth 
circuit,  and  the  judgments,  orders,  and  decrees  of  such  court 
shall  be  final  in  such  cases.  But  whenever  such  circuit 
court  of  appeals  may  desire  the  instruction  of  the  Supreme 
Court  of  the  United  States  upon  any  question  or  proposition 
of  law  which  shall  have  arisen  in  any  such  case,  the  court 
may  certify  such  question  or  proposition  to  the  Supreme 
Court,  and  thereupon  the  Supreme  Court  shall  give  its  in- 
struction upon  the  question  or  proposition  certified  to  it,  and 
its  instruction  shall  be  binding  upon  the  circuit  court  of  ap- 
peals." 

a  Referring  to  §  3,  act  of  June  28,  1906.  ch.  3934,  34  Stat.  at  L.  815,  1909 
Supp.  F.  S.  A.  294.  In  general,  Price  v.  United  States,  169  Fed.  791,  95  C. 
C.  A.  257. 

«  For  Annotation  of  this  §  134,  Judicial  Code,  see  footnote  b,  ante,  our  §  842. 


APPELLATE  JURISDICTION  OF  C.  C.  A.  499 


§  2036.  Place  of  Hearing  of  Appeals  and  Writs  of  Error 
from  Alaska. 

§  135,  Judicial  Code?  36  Stat.  at  L.  1135,  Comp.  St. 
1911,  p.  195,  1912  Supp.  F.  8.  A.  v.  1,  p.  197.  "All  appeals 
and  writs  of  error,  and  other  cases,  coming  from  the  district 
court  for  the  district  of  Alaska  to  the  circuit  court  of  appeals 
for  the  ninth  circuit,  shall  be  entered  upon  the  docket  and 
heard  at  San  Francisco,  California,  or  at  Portland,  Oregon, 
or  at  Seattle,  Washington,  as  the  trial  court  before  whom 
the  case  was  tried  below  shall  fix  and  determine:  Provided, 
That  at  any  time  before  the  hearing  of  any  appeal,  writ  of 
error,  or  other  cases,  the  parties  thereto,  through  their  re- 
spective attorneys,  may  stipulate  at  which  of  the  above  named 
places  the  same  shall  be  heard,  in  which  case  the  case  shall 
be  remitted  to  and  entered  upon  the  docket  at  the  place  so 
stipulated,  and  shall  be  heard  there." 

§  2037.  Appellate  Jurisdiction  from  District  Court  Canal 
Zone. 

Pi.  §  9,  Act  Aug.  2J>,  1912,  ch  390,  37  Stat.  at  L.  566. 
"The  circuit  court  of  appeals  of  the  fifth  circuit  of  the  United 
States  shall  have  jurisdiction  to  review,  revise,  modify,  re- 
verse, or  affirm  the  final  judgments  and  decrees  of  the  district 
court  of  the  Canal  Zone  and  to  render  such  judgments  as  in 
the  opinion  of  the  said  appellate  court  should  have  been  ren- 
dered by  the  trial  court  in  all  actions  and  proceedings  in 
which  the  Constitution,  or  any  statute,  treaty,  title,  right,  or 
privilege  of  the  United  States,  is  involved  and  a  right  there- 
under denied,  and  in  cases  in  which  the  value  in  controversy 
exceeds  one  thousand  dollars,  to  be  ascertained  by  the  oath 
of  either  party,  or  by  other  competent  evidence,  and  also  in 
criminal  causes  wherein  the  offense  charged  is  punishable  as 
a  felony.  And  such  appellate  jurisdiction,  subject  to  the 
right  of  review  by  or  appeal  to  the  Supreme  Court  of  the 
United  States  as  in  other  cases  authorized  by  law,  may  be 
exercised  by  said  circuit  court  of  appeals  in  the  same  manner, 
under  the  same  regulations,  and  by  the  same  procedure  as 
nearly  as  practicable  as  is  done  in  reviewing  the  final  judg- 
ments and  decrees  of  the  district  courts  of  the  United 
States." 

*  Re-enacting  act  of  Jan.   11,  1909,  ch.  15,  35  Stat.  at  L.  585,  1909  Supp. 
F.  S.  A.  30. 


500        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2038 

§  2038.  Powers  and  Duties  of  Judges  upon  Appeal. 

§  182,  Judicial  Code*  36  Stat.  at  L.  1134,  Com  p.  ,-/. 
1911,  p.  194,  1912  Supp.  F.  S.  A.  196.  "Any  judge  of  a 
circuit  court  of  appeals,  in  respect  of  cases  brought  or  to 
be  brought  before  that  court,  shall  have  the  same  powers 
and  duties  as  to  allowances  of  appeals  and  writs  of  error,  and 
the  condition  of  such  allowances,  as  by  law  belong  to  the 
justices  or  judges  in  respect  of  other  courts  of  the  United 
States  respectively." 

«•  Re-enacting  §  11  of  C.  C.  A.  act  of  March  3,  1891,  ch.  517,  26  Stat.  at  L. 
820.  Rose's  Code,  §§  1890,  1905,  Comp.  St.  1901,  p.  552,  4  F.  S.  A.  428.  In 
-(iirral,  McClellan  v.  Garland,  217  U.  S.  268,  54  L.  ed.  762,  30  Sup.  Ct.  Rep. 
501. 


CHAPTER  41. 

APPELLATE  PROCEDURE  IN  EQUITY. 

Sec. 

2050.  In  General. 

2051.  Parties   in  Appeal. 

2052.  Time  for  Appeals  from  District  Courts  to  the  Supreme  Court  of  the 

United  States. 

2053.  Time  for  Appeals  to  Circuit  Courts  of  Appeal. 

2054.  Time  for  Appeals  to  Circuit  Courts  of  Appeal  from  Interlocutory  Orders. 

2055.  Time  for  Appeals  from  Circuit  Courts  of  Appeal  to  Supreme  Court. 

2056.  Time  to  Secure  Review  of  State  Court  Decisions. 

2057.  Procedure    on    Appeal   to    Circuit    Courts   of   Appeal   the    Same   as   to 

Supreme   Court. 

2058.  Allowance  of  Appeals. 

2059.  Assignment   of   Errors. 

2060.  Citation. 

2061.  Bond  on  Appeal. 

2062.  No  bond  Required  of  United  States. 

2063.  Supersedeas. 

2064.  Injunction    Pending   Appeal. 

2065.  Proceeding  in  Forma  Paupcris. 

2066.  Transcript  on  Appeal  and  Error. 

2067.  Reduction  and  Preparation  of  Record  on  Appeal  and  Error  to  Supreme 

Court. 

2068.  Reduction  and  Preparation  of  Record  under  New  Equity  Rules. 

2069.  Printing  and  Filing  of  Record  on  Appeal  and  Error  to  Circuit  Courts 

bf  Appeal. 

2070.  Printing  and  Filing  of  Record  on  Appeal  and  Error  to  Supreme  Court — 

Use  of  Record  in  Circuit  Court  of  Appeals  as  Part  of  Transcript. 

2071.  One   Record   Sufficient   When   Both   Parties   Appeal   to   Supreme   Court 

Direct. 

2072.  Time  for  Return  of  Appeals  and  Writs  of  Error. 

2073.  Summary  of  Procedure  on  Appeal. 

2074.  Review  of  Final  Decisions  of  Circuit  Courts  of  Appeal  upon  Certiorari. 

2075.  Certification  by  Circuit  Courts  of  Appeal  to  Supreme  Court. 

2076.  Appellate  Procedure — District  Courts  of  Alaska  to  the  Supreme  Court. 

2077.  Appellate    Procedure — From    Supreme    and    District    Courts    of    Porto 

Rico. 

2078.  Appellate   Procedure — From   Supreme   Court   of   Philippines. 

2079.  Appellate  Procedure — From  District  of  Columbia. 

501 


502        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2050 

Sec. 

2080.  Appellate    Procedure — From    District   of   Columbia    Where   Decision    of 

Circuit  Court  of  Appeals  Is  Otherwise  Final. 

2081.  Appellate  Procedure — From  Supreme  Court  of  Hawaii  to  United  States 

Supreme  Court. 

2082.  Certiorari  Ninth  Circuit  to  Supreme  Court  in  Alaska  Cases. 

2083.  Procedure  after  Transcript  Reaches  Appellate  Court. 

2084.  Dismissal  of  Appeal. 

2085.  Diminution    of    Record. 

2086.  Mandate. 

2087.  Death  of  Party  after  Judgment  but  before  Appeal. 

2088.  Death  of  Party  while  Appeal  to  Supreme  Court  Pending. 

2089.  Supreme  Court  Procedure  upon  Death  of  Party  Whose  Personal  Repre- 

sentative is  without  Jurisdiction  of  Trial  Court. 

2090.  Death  of  Party  Pending  Appeal  to  Circuit  Court  of  Appeals. 

2091.  Procedure   in   Circuit   Court  of   Appeals   Where  Representative   of   De- 

ceased Is  not  within  Trial  Court's  Jurisdiction. 

§  2050.  In  General.  While  the  distinction  between  appeals 
and  writs  of  error  is  well  defined  and  rigidly  observed  as  stated 
in  chapter  28,  the  procedure  by  which  the  review  is  obtained  in 
each  case  is  similar,  the  same  steps  being  necessary  and  the  same 
time  limit  usually  applying  in  both  proceedings.  Consequently 
what  is  here  stated  with  regard  to  procedure  on  appeal  applies 
as  well  to  procedure  upon  writ  of  error,  subject  to  the  qualifica- 
tions contained  in  chapter  28. 

Federal  appeals  as  treated  herein  are  of  four  general  classes: 
1st.  Appeals  from  district  courts  to  United  States   Supreme 
Court1 

2d.  Appeals  from  district  courts  to  circuit  courts  of  appeal.2 
3d.  Appeals  from  circuit  courts  of  appeal  to  Supreme  Court.5 
4th.  Writs  of  error  to  state  courts  of  last  resort  from  the  United 
States  Supreme  Court.* 

In  addition  to  these  four  classes  of  appeals,  there  is  provided  a 
method  of  appeal  by  certiorari  or  by  certification  of  questions  of 
law  from  the  circuit  courts  of  appeal  to  the  Supreme  Court  in 
cases  where  the  decision  of  the  circuit  courts  of  appeal  is  otherwise 
final.6 

The  procedure  on  appeal  in  each  of  the  four  classes  is  identical 
except  as  to  the  time  within  which  the  appeal  must  be  taken,  and 

1  See  chapter  39.     2  See  chapter  40.     8  See  chapter   39.     *  See  chapter   11. 
8  See  chapter  39. 


g  2051          APPELLATE  PROCEDURE  IN  EQUITY  503 

as  to  the  differences  in  practice  due  to  variations  in  the  rules  of  the 
various  circuits  which  should  always  be  examined  by  the  prac- 
titioner. These  rules  will  be  found  in  the  Appendix,  where  the 
corresponding  rules  of  each  circuit  are  grouped  together,  and  where 
circuit  courts  of  appeals  rules  are  designated  by  number  in  this 
chapter,  the  compilation  in  the  Appendix  is  referred  to. 

Consequently  the  four  classes  of  appeals  enumerated  are  herein 
treated  collectively  except  as  to  the  time  within  which  appeals 
must  be  taken,  while  proceedings  upon  certiorari  or  certification 
from  the  circuit  courts  of  appeal  to  the  Supreme  Court  are  treated 
separately.  Appellate  procedure  from  courts  of  Porto  Kico, 
Hawaii,  Alaska,  the  Philippines,  and  the  District  of  Columbia 
falls  within  one  of  the  four  classes  previously  enumerated,  as 
indicated  in  separate  sections. 

Procedure  in  the  appellate  court,  after  the  transcript  has  been 
properly  filed  therein,  dismissal  of  appeals,  writ  of  mandate,  and 
effect  of  death  on  appeals,  are  separately  treated  in  the  latter 
part  of  the  chapter. 

§  2051.  Parties  in  Appeal.  In  cases  of  joint  judgments  or 
decrees,  all  parties  interested  or  affected  by  the  decree  or  judgment 
must  join  in  an  appeal  therefrom  unless  it  appears  from  the  record 
that  there  is  good  cause  why  they  cannot  be  so  joined. 

However,  if  one  or  more  of  the  interested  parties  refuse  to 
join  in  the  appeal,  those  who  desire  to  do  so  may  serve  their  co- 
defendants  or  plaintiffs,  as  the  case  may  be,  with  a  notice  of  their 
intention  to  appeal  and  a  request  for  them  to  join  therein.  Then 
if  they  refuse  to  be  made  parties,  a  motion  may  be  filed  setting 
forth  the  facts  and  praying  that  the  appeal  may  be  prosecuted 
by  those  of  the  parties  desiring  to  do  so.  This  motion,  being 
granted,  constitutes  what  is  called  "severance,"  and  the  appeal 
by  those  of  the  parties  who  desire  to  institute  it  is  maintainable. 
Failure  to  join  all  interested  parties  without  having  obtained  a  sev- 
erance is  fatal  to  the  jurisdiction  of  the  appellate  court,  and  the 
motion  for  the  severance  must  be  incorporated  in  the  record  in  or- 


f>04        MONTGOMERY'S  M AM  AI.  OF  FEDERAL  PROCEDURE     §  2051 

dcr  to  vest  that  court  with  jurisdiction.  This  matter  may  be  raised 
at  any  time  before  final  disposition  of  the  appeal.6 

It  is  said  in  the  case  of  Hardee  v.  Wilson,  146  U.  S.  179, 
that  there  are  two  reasons  for  the  rule:  (1)  That  the  successful 
parties  may  be  at  liberty  to  proceed  in  the  enforcement  of  his 
judgment  or  decree  against  the  parties  who  do  not  desire  to  have 
it  reviewed;  (2)  that  the  appellate  tribunal  shall  not  be  required 
to  decide  a  second  or  third  time  the  same  question  on  the  same 
record. 

An  exception  to  this  rule  exists  in  a  case  where  one  of  several 
defendants  affected  by  a  joint  decree  takes  his  appeal  in  open 
court  when  the  decree  is  entered.7 

Inasmuch  as  all  parties  are  then  deemed  present  in  court,  the 
allowance  of  the  appeal  under  these  conditions  takes  the  place  of 
summons  and  severance,  and  if  citation  issues,  or  if  other  notice 
is  given,  it  is  considered  superfluous,  any  defects  being  imma- 
terial.8 

Ordinarily  only  a  party  to  the  suit  is  entitled  to  appeal,9  but 
there  are  cases  in  which  the  interest  of  persons  not  made  parties 
to  the  original  suit  are  so  affected  by  the  decree  that  they  are 
entitled  to  a  review.10  When  this  is  the  case,  the  interest  of  such 
persons  must  clearly  appear  as  well  as  the  manner  in  which  such 
interest  is  affected  by  the  decree  complained  of,  which  should 
probably  be  done  by  a  sworn  petition  for  appeal,  setting  up  those 
facts  and  petitioning  for  an  order  of  intervention  allowing  them 
to  become  parties  for  the  purposes  of  appeal.11 

Such  intervention,  however,  rests  within  the  discretion  of  the 
court,  and  if  the  petition  is  refused  mandamus  will  not  lie.12 

An  example  of  a  case  in  which  an  appeal  may  be  allowed  on 
behalf  of  one  not  a  party  to  the  original  proceeding,  is  found  in 

6  Loveless  v.  Ransom,  107  Fed.  627,  46  C.  C.  A.  515. 

7  Detroit  v.  Guarantee  Co.  168  Fed.  611,  93  C.  C.  A.  604. 

8  Swift  v.  Kortrecht,  110  Fed.  328.  49  C.  C.  A.  68. 

9  Ex  parte  Cockcroft,  104  U.  S.  578,  26  L.  ed.  856;   In  re  Woerishoffer    74 
Fed  916,  21  C.  C.  A.  175    (cases  cited). 

10  Davis   v.   Mercantile  Trust   Co.   152   U.   S.   594,   38  L.  ed.   563,   14   Sup 
Ct.  Rep.  693. 

"Aiken  v.  Smith,  54  Fed.  806,  4  C.  C.  A.  654. 

12  In  re  Columbia  Real  Estate  Co.  112  Fed.  645,  50  C.  C.  A.  406. 


§  2053          APPELLATE  PROCEDURE  IN  EQUITY  505 

the  case  of  an  appeal  by  a  reciever  in  a  foreclosure  suit  who  is 
not  a  party  to  the  original  suit,13  and  also,  under  certain  conditions, 
the  case  of  a  purchaser  of  property  at  a  foreclosure  sale.14 

Where  a  corporation  is  a  party  to  a  suit,  an  appeal  may  be 
prosecuted  in  the  corporate  name,  but  if  the  appellant  is  a  part- 
nership the  appeal  may  not  be  taken  in  the  firm  name,  but  must 
be  prosecuted  in  the  name  of  the  individual  partners,  each  of 
whom  must  personally  sign  the  appeal  bond.15 

The  rule  that  all  parties  must  be  joined  in  an  appeal  applies 
to  appellees  as  well  as  to  appellants,  but  where  several  appellees 
are  representatives  of  a  class,  "citation  need  be  served  only  upon 
a  few  of  each  class  who  should  appear  in  good  faith  in  defense 
of  the  interest  of  that  class."  16 

§  2052.  Time  for  Appeals  from  District  Courts  to  the 
Supreme  Court  of  the  United  States. 

§  1008,  P.  8.,  Comp.  St.  1901,  p.  715,  4  F.  8.  A.  622. 
"Xo  judgment,  decree,  or  order  of  a  circuit  or  district  court, 
in  any  civil  action,  at  law  or  in  equity,  shall  be  reviewed  in 
the  Supreme  Court,  on  writ  of  error  or  appeal,  unless  the 
\vrit  of  error  is  brought,  or  the  appeal  is  taken,  within  two 
years  after  the  entry  of  such  judgment,  order,  or  decree: 
Provided,  That  where  a  party  entitled  to  prosecute  a  writ 
of  error  or  .to  take  an  appeal  is  an  infant,  insane  person,  or 
imprisoned,  such  writ  of  error  may  be  prosecuted  or  such 
appeal  may  be  taken,  within  two  years  after  the  judgment, 
decree,  or  order,  exclusive  of  the  term  of  such  disability." 

§  2053.  Time  for  Appeals  to  Circuit  Courts  of  Appeal. 

Those  sections  of  the  Judicial  Code  relating  to  circuit  courts  of 
appeal  are  largely  re-enactments  of  the  act  of  March  3,  1891. 
However  §  11  of  that  act  prescribing  the  time,  procedure,  and 
method  of  appeal  has  not  been  re-enacted  (except  as  to  the  con- 
is  Honey  v.  McDonald,  109  U.  S.  155,  27  L.  ed.  889. 

14  Davis  v.  Mercantile  Trust  Co.  152  U.  S.  594,  38  L.  ed.  563,  14  Sup.  Ct. 
Rep.  693. 

15  Estes  v.  Trabue,  128  U.  S.  225,  32  L.  ed.  437,  9  Sup.  Ct.  Rep.  58. 

16  Kidder  v.  Fidelity  Ins.  Trust  &  Safe  Deposit  Co.  105  Fed.  821,  44  C.  C 
A.  593. 


506         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE  §  2055 

eluding  sentence  thereof,   which  now  constitutes   §    132   of  the 
Judicial  Code),  but  still  remains  in  force. 

That  part  of  the  act  relating  to  the  time  within  which  appeals 
must  be  taken  is  as  follows: 

PL  §  11,  Act  March  8,  1891,  Comp.  St.  1901 ,  p.  552,  4 
F.  8.  A.  4^8.  "No  appeal  or  writ  of  error  by  which  any 
order,  judgment,  or  decree  may  be  reviewed  in  the  circuit 
court  of  appeals  shall  be  taken  or  sued  out  except  within  six 
months  after  the  entry  of  the  order,  judgment,  or  decree 
sought  to  be  reviewed:  Provided,  however,  That  in  all  cases 
in  which  a  lesser  time  is  now  by  law  limited  for  appeals  or 
writs  of  error,  such  limits  of  time  shall  apply  to  appeal  or 
writs  of  error  in  such  cases  taken  to  or  sued  out  from  the 
circuit  court  of  appeals." 

§  2054.  Time  for  Appeals  to  Circuit  Courts  of  Appeal 
from  Interlocutory  Orders. 

PL  §  129,  Judicial  Code,9-  36  Stat.  at  L.  1134,  Comp.  St. 
1911,  p.  194,  1912  Supp.  F.  8.  A.  v.  1,  p.  195.  "The  appeal 
(from  an  interlocutory  order  or  decree,  granting, 
continuing,  refusing,  dissolving,  or  refusing  to  dissolve  an 
injunction,  or  appointing  a  receiver, — to  the  circuit  court  of 
appeals)  must  be  taken  within  thirty  days  from  the  entry  of 
such  order  or  decree." 

§  2055.  Time  for  Appeals  from  Circuit  Courts  of  Appeal 
to  Supreme  Court.  Appeals  in  the  third  class  of  cases  above  enu- 
merated must  be  taken  within  the  time  prescribed  by  §  6  of  the 
act  of  March  3,  1891,  that  part  of  the  act  relating  to  the  time 
limit  in  this  classification  being  as  follows: 

PL  §  6,  Act  March  3,  1891,  Comp.  St.  1901,  p.  550,  4 
F.  8.  A.  409.  "In  all  cases  .  .  .  not  hereinbefore  made 
final,  there  shall  be  of  right  an  appeal  or  writ  of  error  or 
review  of  the  case  by  the  Supreme  Court  of  the  United  States 
where  the  matter  in  controversy  shall  exceed  one  thousand 
dollars  besides  costs.  But  no  such  appeal  shall  be  taken  or 

a  For   Annotation  of  this   §   129,  Judicial  Code,   see  footnote  b,   ante,   our 
§  2032. 


§  2057          APPELLATE  PROCEDURE  IN  EQUITY  507 

writ  of  error  sued  out  unless  within  one  year  after  the  entry 
of  the  order,  judgment,  or  decree  sought  to  be  reviewed." 

The  above-quoted  paragraph  has  been  re-enacted  except  as  to 
the  concluding  sentence  relating  to  the  time  within  which  appeals 
must  be  taken,  as  §  241,  Judicial  Code.  But  the  act  of  1891  still 
remains  in  force  as  to  the  time  therein  prescribed. 

§  2056.  Time  to  Secure  Review  of  State  Court  Decisions. 

§  1003,  R.  8.,  Comp.  St.  1901,  p.  713,  4  F.  S.  A.  p.  616. 
"Writs  of  error  from  the  Supreme  Court  to  a  state  court,  in 
cases  authorized  by  law,  shall  be  issued  in  the  same  manner 
and  under  the  same  regulations,  and  shall  have  the  same 
effect,  as  if  the  judgment  or  decree  complained  of  had  been 
rendered  or  passed  in  a  court  of  the  United  States." 

The  writ  of  error  must,  therefore,  be  allowed  within  two  years 
after  the  entry  of  judgment  or  decree,  as  provided  by  §  1008, 
R.  S.,  Comp.  St.  1901,  p.  715,  4  F.  S.  A.  p.  622,  quoted  §  2052. 

§  2057.  Procedure  on  Appeal  to  Circuit  Courts  of  Appeal 
the  Same  as  to  Supreme  Court. 

PL  §  11,  Act  March  3,  1891,  ch.  517,  Comp.  St.  1901,  p. 
552,  4  F-  S.  A.  428.  "All  provisions  of  law  now  in  force  regu- 
lating the  method  and  system  of  review  through  appeals  and 
writs  of  error  shall  regulate  the  methods  and  systems  of  ap- 
peals and  writs  of  error  provided  for  in  this  act  in  respect 
to  the  circuit  courts  of  appeals,  including  all  provisions  for 
bonds  or  other  securities  to  be  required  and  taken  on  such 
appeals  and  writs  of  error,  and  any  judge  of  the  circuit  court 
of  appeals  in  respect  of  cases  brought  or  to  be  brought  to 
that  court  shall  have  the  same  powers  and  duties  as  to  the 
allowance  of  appeals  or  writs  of  error,  and  the  conditions  of 
each  allowance  now  belong  to  the  justices  or  judges  in  respect 
of  the  existing  courts  of  the  United  States  respectively." 

The  effect  of  this  act  is  to  make  the  practice  and  procedure 
upon  appeals  and  writs  of  error  to  the  circuit  court  of  appeals 
identical  of  that  upon  appeal  and  error  to  the  Supreme  Court, 


508        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2058 

except  as  to  difference  resulting  from  differences  between  rules 
of  the  various  circuits. 

§  2058.  Allowance  of  Appeals.  The  first  step  in  prosecuting 
an  appeal,  whether  to  the  Supreme  Court  or  the  circuit  court  of 
appeals,  is  to  have  the  appeal  "allowed."  When  this  is  done 
the  appeal  is  "taken"  in  the  sense  prescribed  by  the  statutes  fix- 
ing the  time  for  appeal. 

There  are  two  methods  of  having  an  appeal  allowed : 

First.  When  the  decree  of  the  lower  court  is  rendered,  appel- 
lant may  give  notice  of  appeal  in  open  court,  at  the  same  time 
filing  his  assignment  of  errors  (which  by  court  rules  must  be 
filed  before  the  allowance)  and  also  filing  and  procuring  the 
acceptance  of  the  necessary  bond  within  the  ,term  of  court  then 
pending.  An  appeal  thus  allowed  in  open  court  is  perfected  with- 
out any  written  petition  for  appeal  or  citation. 

Second.  If  the  appeal  is  not  perfected  as  above,  the  first  step 
toward  having  it  allowed  is  the  preparation  and  filing  of  a  petition 
for  appeal  addressed  to  the  lower  court,  which  may  be  substantial- 
ly in  the  following  form: 

Title  of  court     )    , 

(.    In   Equity, 
and   cause        I 

To  the  Honorable  ,  District  Judge,  the  above  named 

feeling  aggrieved  by  the  decree  rendered  and  entered  in  the  above  entitled 

cause  on  the day  of A.  D.  19 . .  . ,  does  hereby  appeal  from 

said  decree  to  the  circuit  court  of  appeals  for  the  circuit  (or  to 

the  Supreme  Court  of  the  United  States)  for  the  reasons  set  forth  in  the 
assignment  of  errors  filed  herewith,  and  he  prays  that  his  appeal  be  allowed 
and  that  citation  be  issued  as  provided  by  law,  and  that  a  transcript  of  the 
record  proceedings  and  document  upon  which  said  decree  was  based,  duly 
authenticated  be  sent  to  the  United  States  Circuit  Court  of  Appeals  for  the 

Circuit  (or  to  the  Supreme  Court  of  the  United  States,  sitting  at 

)  under  the  rules  of  such  court  in  such  cases  made  and  provided. 

And  your  petitioner  further  prays  that  the  proper  order  relating  to  the 
required  security  to  be  required  of  him  be  made. 

His  petition  having  been  filed,  it  must  be  allowed,  for  in  all 
appealable  cases,  the  right  of  appeal  is  absolute,  the  only  discretion 
which  the  judge  can  exercise  being  as  to  the  sufficiency  of  the 


§  2059          APPELLATE  PROCEDURE  IN  EQUITY  509 

appeal  bond,  and  if  he  refuses  to  allow  the  appeal  mandamus  may 
be  resorted  to. 

No  particular  form  of  allowance  is  required,  the  usual  pro- 
ceeding being  an  indorsement  upon  the  petition,  to  the  follow- 
\ng  effect: 

Appeal  allowed  upon  giving  bond  as  required  by  law  for  the  sum  of  $ 

Judge. 

Or  the  following  separate  order  of  allowance  may  be  made: 

ORDER  ALLOWING  APPEAL. 

(TITLE  OF  COURT  AND  CAUSE) 

On  motion  of ,  Esq.,  solicitor  and  counsel  for  complainant,  it  is 

hereby  ordered  that  an  appeal  to  the  Supreme  Court  of  the  United  States  from 
the  decree  heretofore  filed  and  entered  herein,  be,  and  the  same  is  hereby 
allowed,  and  that  a  certified  transcript  of  the  record,  testimony,  exhibits, 
stipulations,  and  all  proceedings  be  forthwith  transmitted  to  said  Supreme 
Court  of  the  United  States.  It  is  further  ordered  that  the  bond  on  appeal  be 

fixed  at  the  sum  of  $ (If  supersedeas  be  desired,  here  insert,  "the  same 

to  act  as  a  supersedeas  bond  and  also  as  a  bond  for  costs  and  damages  on 
appeal.") 

Dated  .  .191.. 


Justice 

The  mere  approval  of  the  bond  or  signing  of  the  petition  by 
the  judge  amounts  to  an  allowance  of  the  appeal,  and  if  the 
petition  for  appeal  and  assignment  of  errors  are  filed  within 
the  time  allowed,  a  subsequent  allowance  of  the  appeal  operates 
by  relation  as  of  that  time,  and  the  appeal  is  properly  perfected 
within  that  time. 

§  2059.  Assignment  of  Errors.  With  the  petition  for  appeal, 
and  in  addition  to  it,  there  must  be  filed  an  assignment  of  errors.17 
This  is  a  detailed  statement  of  each  of  the  alleged  errors  relied  up- 
on and  intended  to  be  urged  by  the  appellant.  It  differs  from  the 

"  C.  C.  A.  Rule  11:   Supreme  Court  Rule  35. 


510        MONTGOMERY'S  MANUAL  OF  FEDERAL  I-ROCEDI'RK     §  2060 

petition  for  appeal  in  that  it  must  set  out  specifically  and  directly 
every  respect  in  which  the  decree  is  erroneous  and  the  reason  why 
it  is  so ;  while  the  petition  asks  for  the  allowance  of  the  appeal  in 
general  terms. 

The  assignment  of  errors  must  be  so  complete  and  clear  that  the 
court  may  obtain  therefrom  a  specific  statement  of  the  question 
presented  without  reference  to  the  brief  or  any  other  source  out- 
side of  the  assignment  itself.18 

The  following  form  is  suggested : 

ASSIGNMENT  OF  ERRORS. 

(TITLE  OF  TRIAL  COURT  AND  CAUSE)   IN  EQUITY. 

Now  comes  the  defendant  in  the  above  entitled  cause  and  files  the  following 
assignment  of  errors  upon  which  he  will  rely  upon  his  prosecution  of  the 
appeal  in  the  above  entitled  cause,  from  the  decree  made  by  this  Honorable 
court  on  the day  of 191 . .  . 

I. 

That  the  United  States  district  court  for  the district  of 

erred  in  over-ruling  the  demurrer  interposed  by  the  defendant  and  appellant 
to  the  original  complaint  filed  in  the  cause. 

II. 

(State  in  separate  paragraphs  each  error  complained  of.) 
WHEREFORE  the  appellant  prays  that  said  decree  be  reversed  and  that 

said  district  court  for  the district  of   be  ordered  to  enter 

a  decree  reversing  the  decision  of  the  lower  court  in  said  cause. 


Attorneys  for  Appellant. 

§  2060.  Citation.  Except  in  cases  of  appeals  allowed  in  open 
court  at  the  term  during  which  the  decree  appealed  from  was 
rendered,  a  citation  returnable  at  the  same  term  with  the  appeal 
or  writ  or  error  is  necessary  to  perfect  jurisdiction  of  the  appeal 
or  writ  or  error,  unless  waived.19 

18  Van  Gunder  v.  Iron  Co.  52  Fed.  838,  3  C.  C.  A.  294;  Grape  Creek  Co.  v. 
Farmers  Co.  63  Fed.  891,  12  C.  C.  A.  350;  Ibid. 

19  Jacobs  v.  George,  150  U.  S.  415,  37  L.  ed.  1127,  14  Sup.  Ct.  Rep.   159; 
Hewitt  v.  Filbert,  116  U.  S.  142,  29  L.  ed.  581,  6  Sup.  Ct.  Rep.  319;  West  v. 
Irwin,  54  Fed.  419,  4  C.  C.  A.  401. 


§  2060          APPELLATE  PROCEDURE  IN  EQUITY  511 

§  999,  R.  8.,  Comp.  St.  1901,  p.  112,  4  F.  8.  A.  609. 
"When  the  writ  is  issued  by  the  Supreme  Court  to  a  circuit 
court,  the  citation  shall  be  signed  by  a  judge  of  such  cir- 
cuit court,  or  by  a  justice  of  the  Supreme  Court,  and  the 
adverse  party  shall  have  at  least  thirty  days'  notice ;  and 
when  it  is  issued  by  the  Supreme  Court  to  a  state  court,  the 
citation  shall  be  signed  by  the  chief  justice  or  judge,  or 
chancellor  of  said  court,  rendering  the  judgment  or  passing 
the  decree  complained  of,  or  by  a  justice  of  the  Supreme 
Court  of  the  United  States,  and  the  adverse  party  will  have 
at  least  thirty  days'  notice." 

§  998,  R.  8.,  Comp.  St.  1901,  p.  712,  4  F.  8.  A.  609. 
"When  the  writ  is  issued  by  a  circuit  court  to  a  district 
court,  the  citation  shall  be  signed  by  the  judge  of  such  dis- 
trict court,  or  by  the  circuit  judge  of  such  circuit  court,  or 
by  a  justice  of  the  Supreme  Court,  and  the  adverse  party 
shall  have  at  least  twenty  days'  notice." 

This  citation  is  a  formal  notice  of  the  allowance  of  an  appeal, 
is  intended  only  for  the  purpose  of  notice,  is  not  jurisdictional, 
and  may  be  waived  or  substituted  by  proof  of  other  equivalent 
notice.20 

No  particular  form  of  citation  is  required  by  statute,  but, 
in  the  absence  of  a  printed  form  supplied  by  the  court  from 
which  the  appeal  is  taken,  the  following  is  suggested: 

CITATION  ON  APPEAL. 

(TITLE  OF  TRIAL  COURT  AND  CAUSE) 

United  States  of  America,  ss. 
To  and  ,  GREETING: 

You  are  hereby  cited  and  admonished  to  be  and  appear  at  the  Supreme 
Court  of  the  United  States,  to  be  held  at  the  city  of  Washington,  in  the 
District  of  Columbia,  on  the day  of ,  A.  D.  191.  ..  Pur- 
suant to  an  order  allowing  an  appeal  filed  and  entered  in  the  clerk's  office 

of  the  district  court  of  the  United  States  for  the district  of 

from  a  final  decree  signed,  filed,  and  entered  on  the day  of , 

191 . .   in  that  certain  suit,  being  in  equity  No wherein   is 

plaintiff  and  you  are  defendant  and   appellee,  to  show  cause,   if  any   there 

20  Farmers  Loan  &  Trust  Co.  v.  C.  &  N.  R.  R.  Co.  73  Fed.  317,  19  C.  C.  A. 
477:  Dayton  v.  Lash,  94  U.  S.  112,  24  L.  ed.  33;  Grijjgsby  v.  Purcell,  99  U. 
S.  505,  '25  L.  ed.  354;  R.  R.  Co.  v.  Blair,  100  U.  S.  661,  25  L.  ed.  587; 
Jacobs  v.  George,  150  U.  S.  415,  37  L.  ed.  1127,  14  Sup.  Ct.  Rep.  159. 


512        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2061 

be,  why  the  decree  rendered  against  the  said  appellant,  as  in  said  order 
allowing  appeal  mentioned,  should  not  be  corrected  and  why  justice  should 
not  be  done  to  the  parties  in  that  behalf. 

Witness   the   Honorable    United   States   district   judge   for 

the    district  of    this    day  of   191  .  . 

and  of  the  Independence  of  the  United  States  


U.  S.  .District  Judge  for  the 
District  of    

§  2061.  Bond  on  Appeal.  The  petition  for  appeal  having  been 
filed,  accompanied  by  the  assignment  of  errors,  a  bond  is  re- 
quired of  the  appellant  payable  to  the  appellee,  conditioned  as 
provided  in  the  following  quoted  section: 

§  1000,  R.  8.,  Comp.  St.  1901,  p.  112,  4  F.  8.  A.  612. 
"Every  justice  or  judge  signing  a  citation  on  any  writ  of 
error  shall,  except  in  cases  brought  up  by  the  United  States 
or  by  direction  of  any  department  of  the  government,  take 
good  and  sufficient  security  that  the  plaintiff  in  error 'or  the 
appellant  shall  prosecute  his  writ  or  appeal  to  effect,  and,  if 
he  fail  to  make  his  plea  good,  shall  answer  all  damages  and 
costs,  where  the  writ  is  a  supersedeas  and  stays  execution, 
or  all  costs  only  where  it  is  not  a  supersedeas  as  aforesaid." 

This  bond  must  be  approved  before  the  appeal  is  perfected,  but 
it  is  not  jurisdictional,  and  if  not  given  at  the  time  when  the 
appeal  is  taken,  the  failure  to  do  so  constitutes  a  mere  irregularity 
Avhich  may  be  cured  by  the  Supreme  Court  allowing  the  appel- 
lant to  file  the  proper  bond  within  a  reasonable  time.81  In  ac- 
cordance with  this  rule  a  bond  furnished  one  month  after  the 
appeal  is  taken  has  been  held  to  be  furnished  within  a  reasonable 
time,22  while  a  lapse  of  four  years  where  permission  to  supply 
the  bond  has  never  been  asked  has  been  held  to  constitute  ground 
for  dismissal  of  appeal.23  Xot  being  jurisdictional,  bond  may 
be  waived  by  the  appellees.24 

21  Brown  v.  McConnel,  124  U.  S.  489,  31   L.  ed.  495,  8  Sup.  Ct.  Rep.  559 : 
Schenck  v.  Diamond  Match  Co.  73  Fed.  22,  19  C.  C.  A.  352;   Anson  v.  Rail- 
road Co.  23  How.  1,  16  L.  ed.  517;  Davidson  v.  Lainer,  4  Wall.  447,  18  L.  ed. 
377:   Seymour  v.  Freed,  5  Wall.  822.  18  L.  ed.  564. 

22  Schenck  v.  Diamond  Match  Co.  73  Fed.  22,  19  C.  C.  A.  352. 

28  Beardsley  v.  Arkansas  &  L.  R.  R.  Co.  158  U.  S.  123,  39  L.  ed.  919,  15 
Sup.  Ct.  Rep"  786. 

24Kingsbury  v.  Buckner,  134  U.  S.  650   33  L.  ed.  1047,  10  Sup.  Ct.  Rep.  638. 


§  2061          APPELLATE  PROCEDURE  IN  EQUITY  513 

The  sufficiency  of  the  security  is  discretionary  with  the  trial 
judge,  and  he  may,  within  his  discretion,  accept  a  bond  signed  by 
any  number  of  sureties,  or  one  in  which  they  are  either  jointly 
and  severally -or  jointly  or  severally  bound,  or  one  in  which  each 
surety  is  oiily 'bound  Severally  for  a  specified  part  of  the  security.25 
The  security  required  upon  appeal  must  be  taken  by  the  justice 
or  judge  signing  the  citation.  He  cannot  delegate  this  power  to 
the  clerk,26  but  if  he  should  do  so,  the  appeal  will  not  usually  be 
dismissed,  but  opportunity  will  be  afforded  the  appellant  to  secure 
a  bond  properly  approved  by  the  judge,27  . 

All  obligees  should  be  individually  named  in  the  bond  to 
insure  certainty,  but  the  fact  that  they  are  not,  as  where  it  is 
made  payable  to  John  Smith  et  al.,  will  not  be  considered  grounds 
for  the  dismissal  of  the  appeal,  and  opportunity  will  be  given  to 
file  a  proper  bond.28  On  the  other  hand,  if  others  besides  the 
party  from  whom  the  decree  appealed  from  is  taken  are  named 
as  obligees  in  .the  bond,  its  validity  is  not  thereby  affected.29 

The  bond  may  be  in  the  following  form : 

BOND  ON  APPEAL. 
< TITLE  OF  TRIAL  COURT  AND  CAUSE) 

KNOW  all  men  by  these  presents,  that  we, as  principal, 

and and as  sureties,  of  the  county  of  , 

State  of  '.;.  ...  .  .  .  are  held  and  firmly  bound  unto  in  the  sum 

of  $ lawful  money  of  the  United  States,  to  be  paid  to  them  and  their 

respective  executors,  administrators  and  successors;  to  which  payment,  well 
and  truly  to  be  made,  we  bind  ourselves  and  each  of  us,  jointly  and  severally, 
and  each  of  our  heirs,  executors,  and  administrators,  by  these  presents. 

Sealed  with  our  seals  and  dated  this   day  of   191 ... 

Whereas  the  above  named  ,  has  prosecuted  a  writ  of  error  to 

the  Supreme  Court  of  the  United  States  to  reverse  the  judgment  of  the  district 
•court  for  the  district  of ,  in  the  above  entitled  cause. 

25  New  Orleans  Ins.  Co.  v.  Albro  Co.  112  U.  S.  506,  28  L.  ed.  809,  5  Sup. 
Ct.  Rep.  289. 

26  Freeman  v.  Clay,  48  Fed.  849,  1   C.  C.  A.   115;    O'Reilley  v.   Edrington, 
•96  U.  8.  724.  24  L. 'ed.  659;   Martin  v.  Hunter's  Lessee,  1   Wheat.  361,  4  L. 
<?d.  Ill;  Raskins  v.  St.  L.  &  E.  R.  R.  Co.  109  U.  S.  106,  27  L.  ed.  873,  3  Sup. 
Ct.  Ri'p.  72. 

27  Ibid. 

28  Swift  &  Co.  v.  Kortrecht,  et  al.  110  Fed.  328,  49  C.  C.  A.  68. 

29  Hill  v.  C.  &  E.  Railway  Company,  129  U.  S.  170,  35  L.  ed.  651,  9  Sup. 
Ct.  Rep.  269. 

Montg.— 33. 


514        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2062 

NOW  THEREFORE,  the  condition  of  this  obligation   is  such  that  if  the 

above    named    shall    prosecute   his    said    appeal    to   effect   and 

answer  all  costs  if  he  fail  to  make  good  his  plea,  then  this  obligation  shall 
be  void;  otherwise  to  remain  in  full  force  and  effect. 


STATE    OF    

COUNTY  OF  . , 


i 


On  the  day  of  , 191 . . ,  personally  appeared  before  me 

and ,  respectively  known  to  me  to  be  the 

persons  described  in  and  duly  executed  the  foregoing  instrument  as  parties 
thereto,  and  respectively  acknowledged,  each  for  himself,  that  they  executed 
the  same  as  their  free  act  and  deed  for  the  purposes  therein  set  forth. 

And  the  said  and  ,  being  respectively  by  me  duly 

sworn,  says,  each  for  himself  and  not  one  for  the  other,  that  he  is  a  resident 

and  householder  of  the  said  county  of and  that  he  is  worth  the  sum 

of  $ over  and  above  his  just  debts  and  legal  liability  and  property 

exempt  from  execution. 


Subscribed  and  sworn  to  before  me 
this day  of A.  D.  191 ... 

(SEAL)  >  JA:?  r  W.'V,:  •<?  r.viy.v 

Notary  Public. 

The  within  bond  is  approved  both  as  to  sufficiency  and  form  this 

day  of ,  191... 


Justice. 

§  2062.  No  Bond  Required  of  United  States. 

§  1001,  R.  8.,  Comp.  St.  1901,  p.  713,  4  F.  8.  A. 
615.  "Whenever  a  writ  of  error,  appeal,  or  other  process 
in  law,  admiralty,  or  equity  issues  from  or  is  brought  up  to 
the  Supreme  Court  or  a  circuit  court,  either  by  the  United 
States  or  by  direction  of  any  department  of  the  govern- 
ment, no  bond,  obligation,  or  security  shall  be  required  from 
the  United-  States,  or  from  any  party  acting  under  the 
direction  aforesaid,  either  to  prosecute  said  suit  or  to  answer 
in  damages  or  costs.  In  case  of  an  adverse  decision,  such 
costs  as  by  law  are  taxable  against  the  United  States,  or 
against  the  party  acting  by  direction  as  aforesaid,  shall,  be 
paid  out  of  the  contingent  fund  of  the  department  under 
whose  directions  the  proceedings  were  instituted." 


§  2063          APPELLATE  PROCEDURE  IN  EQUITY  515 

§  2063.  Supersedeas. 

§  1007,  R.  8.,  Comp.  St.  1901,  p.  114,  4  F.  S.  A.  618. 
"In  any  case  where  the  writ  of  error  may  be  a  supersedeas, 
the  defendant  may  obtain  such  supersedeas  by  serving  the 
writ  of  error  by  lodging  a  copy  thereof  for  the  adverse  party 
in  the  clerk's  office,  where  the  record  remains  within  sixty 
days,  Sundays  exclusive,  after  the  rendering  of  a  judgment 
complained  of,  and  giving  the  security  required  by  law 
within  sixty  days  after  the  rendition  of  such  judgment  or 
afterward,  with  the  permission  of  a  justice  or  judge  of  the 
appellate  court.  And  in  such  cases,  where  a  writ  of  error 
may  be  a  supersedeas,  executions  shall  not  be  issued  until  the 
expiration  of  ten  days." 

Under  this  section,  which  applies  alike  to  appeals  and  writs  of 
error,  it  is  held  that  supersedeas,  if  applied  for  in  strict  com- 
pliance with  the  statute,  is  a  matter  of  right,80  no  discretion 
being  vested  in  the  judge,  other  than  as  to  the  amount  of  the  bond, 
except  in  appeals  from  injunction,  where  the  granting  of  a  super- 
sedeas is  discretionary.81 

Strict  compliance  with  the  statute  is  required,  however;  for 
supersedeas  is  purely  a  statutory  remedy,  and  unless  the  pre- 
scribed steps  are  taken  within  sixty  days,  Sundays  excluded,  from 
the  rendering  of  the  decree,  it  is  not  within  the  power  of  the 
court  to  award  a  supersedeas,82  although  the  bond  required 33 
may  be  given  after  that  time,  with  the  permission  of  the  appellate 
court.  Commenting  upon  the  clause  extending  the  time  for  giv- 
ing the  bond,  the  Supreme  Court  says  in  the  case  of  Kitchen  v. 
Randolph,  93  U.  S.  86,  23  L.  ed.  810 : 

"Had  the  section  stopped  here  (the  first  clause)  a  plaintiff  in 
error  or  appellant  would  have  been  compelled  to  elect,  when  he 
sued  out  his  writ  of  error  or  took  his  appeal,  whether  he  would 
have  a  supersedeas  or  not;  because  it  is  made  one  of  the  con- 
ditions of  the  stay  of  proceedings  that  the  requisite  security  shall 
be  given,  upon  the  issuing  of  the  citation.  Having  once  made 

soMcCourt  v.  Singersbigger,  145  Fed.  103,  76  C.  C.  A.  73,  7  Ann.  Gas.  287. 
31  §  2032,  supra. 

82  Sase  v.  Cent.  Ry.  Co.  93  U.  S.  417,  23  L.  ed.  935;  N.  E.  Ry.  v.  Hyde,  101 
Fed.  3J)8.  41  C.  C.  A.  404. 

83  §  2061,  supra. 


516        MONTGOMERY'S  MANUAL  OF  FEDKKAL  IMJOCKDI  I;K 

his  election,  he  would  be  concluded  by  what  he  had  done.  But 
Congress  foreseeing,  undoubtedly,  that  cases  might  arise  in  which 
serious  loss  would  result  from  such  a  rule,  went  further,  and, 
in  a  subsequent  part  of  the  section,  provided  that  if  a  writ  of 
error  had  been  served,  as  required  in  the  first  paragraph,  a  stay 
might  be  had  as  a  matter  of  right  by  giving  the  required  security 
within  sixty  days,  and  afterwards,  as  a  matter  of  favor,  if  per- 
mission could  be  obtained  from  the  designated  justice  or  judge. 
Thus  prompt  action  in  respect  to  the  writ  was  required  and  in- 
dulgence granted  only  as  to  the  security."  84 

The  supersedeas  order  may  be  incorporated  in  the  bond,35  or 
it  may  be  in  the  form  of  a  separate  order  as  follows : 

SUPERSEDEAS  ORDER. 

(TITLE  OF  TRIAL,  COURT  AND  CAUSE) 

This  cause  coming  on  to  be  heard  this    day  of    191 . . , 

upc:i  the  application  of  the  appellant  for  an  appeal  to  the  Supreme  Court  of 
liie  United  States  and  said  appeal  having  been  allowed  it  is  ordered  that 
the  same  shall  operate  as  a  supersedeas,  the  said  appellant  having  executed 

bonds   in  the  sum  of  $ as   provided  by   law   and   the  clerk   is   hereby 

directed  to  stay  the  mandate  of  the  district  court  of  the    district  of 

.,  until  the  further  order  of  this  court. 


Justice. 

The  effect  of  a  supersedeas  is  to  hold  in  abeyance  all  proceed- 
ings in  the  court  below,  until  the  decree  is  affirmed.36 

§  2064.  Injunction  Pending  Appeal. 

Equity  Rule  7-4.b  "When  an  appeal  from  a  final  decree, 
in  an  equity  suit,  granting  or  dissolving  an  injunction,  is 
allowed  by  a  justice  or  a  judge  who  took  part  in  the  decision 
of  the  cause,  he  may,  in  his  discretion,  at  the  time  of  such 
allowance,  make  an  order  suspending,  modifying,  or  restor- 
ing the  injunction  during  the  pendency  of  the  appeal,  upon 
such  terms,  as  to  bond  or  otherwise,  as  he  may  consider 
proper  for  the  security  of  the  rights  of  the  opposite  party." 

34  Kitchen  v.  Randolph,  93  U.  S.  86,  90,  23  L.  ed.  810. 

35  §  2061,  supra. 

38  Ransom  v.  Pierre,  101  Fed.  669.  41   C.  C.  A.  585:   Hovey  v.  McDonald, 
309  U.  S.  150,  27  L.  ed.  888,  3  Sup.  Ct.  Rep.  136. 
1»  See  Equity  Rule  74,  with  Annotations,  in  Appendix,  post. 


§  2066          APPELLATE  PROCEDURE  IN  EQUITY  517 

§  2065.  Proceeding  in  Forma  Pauperis. 

Act  of  July  20,  1892,  Comp.  Stat.  1901,  p.  706,  2 
F.  8.  A.  294.  "Any  citizen  of  the  United  States  entitled 
to  commence  any  suit  or  action  in  any  court  of  the  United 
States  may  commence  and  prosecute  to  conclusion  an}' 
such  suit  or  action  without  being  required  to  prepay  fees 
or  costs,  or  give  security  therefor  before  or  after  bring- 
ing a  suit  or  action,  upon  filing  in  said  court  a  statement 
under  oath,  in  writing,  that,  because  of  his  poverty  he  is 
unable  to  pay  the  costs  of  said  suit  or  action  which  he  is 
about  to  commence,  or  to  give  security  for  the  same,  and 
that  he  believes  he  is  entitled  to  the  redress  he  seeks  by 
such  suit  or  action,  and  setting  forth  briefly  the  nature  of  his 
alleged  cause  of  action." 

After  several  years  of  conflicting  decisions,  during  which  time 
some  courts  construed  this  statute  to  apply  to  appellate  procedure 
as  well  as  original  proceedings,  while  others  took  the  opposite  view, 
the  Supreme  Court  has  expressly  decided  that  the  act  does  not 
apply  to  appellate  procedure,  and  that  the  Supreme  Court,  in 
the  absence  of  statute,  has  no  authority  to  allow  an  appeal  or 
writ  of  error  in  forma  pauperis.3'' 

§  2066.  Transcript  on  Appeal  and  Error. 

Pi.  Supreme  Court  Rule  8.  "1.  The  clerk  of  the  court 
to  which  any  writ  of  error  may  be  directed  shall  make  re- 
turn of  the  same,  by  transmitting  a  true  copy  of  the  record, 
and  of  the  assignment  of  errors,  and  of  all  proceedings  in 
the  case,  under  his  hand  and  the  seal  of  the  court.  .  .  . 

"2.  In  all  cases  brought  to  this  court,  by  writ  of  error  or 
appeal,  to  review  any  judgment  or  decree,  the  clerk  of  the 
court  by  which  such  judgment  or  decree  was  rendered  shall 
annex  to  and  transmit  with  the  record  a  copy  of  the  opinion 
or  opinions  filed  in  the  case. 

"3.  No  case  will  be  heard  until  a  complete  record,  con- 
taining in  itself,  and  not  by  reference,  all  the  papers,  ex- 
hibits, depositions,  and  other  proceedings  which  are  nec- 
essary to  the  hearing  in  this  court,  shall  be  filed. 

"4.  Whenever  it  shall  be  necessary  or  proper,  in  the  opin- 
ion of  the  presiding  judge  in  any  circuit  court,  or  district 

37  Bradford  v.  S.  R.  R.  Co.  195  U.  R.  243,  49  L.  ed.  178,  25  Sup.  Ct.  Rep. 
55;  Taylor  V.  Adams  Express  Co.  364  Fed.  616,  90  C.  C.  A.  526. 


518        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2066 

court  exercising  circuit  court  jurisdiction,  that  original 
papers  of  any  kind  should  be  inspected  in  this  court,  upon 
writ  of  error  or  appeal,  such  presiding  judge  may  make 
such  rule  or  order  for  the  safe-keeping,  transporting,  and 
return  of  such  original  papers  as  to  him  may  seem  proper, 
and  this  court  will  receive  and  consider  such  original  papers 
in  connection  with  the  transcript  of  the  proceedings." 

Pt.  C.  C.  A.  Ride  14-  "1.  The  clerk  of  the  court  to 
which  any  writ  of  error  may  be  directed  shall  make  a  re- 
turn of  the  same  by  transmitting  a  true  copy  of  the  record, 
bill  of  exceptions,  assignment  of  errors,  and  all  proceedings 
in  the  case,  under  his  hand  and  the  seal  of  the  court. 

"2.  In  all  cases  brought  to  this  court  by  writ  of  error  or 
appeal,  to  review  any  judgment  or  decree,  the  clerk  of  the 
court  by  which  such  judgment  or  decree  was  rendered  shall 
annex  to  and  transmit  with  the  record  a  copy  of  the  opinion 
or  opinions  filed  in  the  case. 

"3.  'No  case  will  be  heard  until  a  complete  record,  con- 
taining in  itself,  and  not  by  reference,  all  the  papers,  ex- 
hibits, depositions,  and  other  proceedings,  which  are  nec- 
essary to  the  hearing  in  this  court,  shall  be  filed. 

"4.  Whenever  it  shall  be  necessary  or  proper,  in  the 
opinion  of  the  presiding  judge  in  any  district  court,  that 
original  papers  of  any  kind  should  be  inspected  in  this 
court  upon  writ  of  error  or  appeal,  such  presiding  judge  may 
make  such  rule  or  order  for  the  safe-keeping,  transporting, 
and  return  of  such  original  papers  as  to  him  may  seem 
proper;  and  this  court  will  receive  and  consider  such  original 
papers  in  connection  with  the  transcript  of  the  proceedings." 

§  698,  R.  8.,  Comp.  St.  1901,  p.  568,  4  F.  S.  A.  446. 
"Upon  the  appeal  of  any  cause  in  equity,  or  of  admiralty 
and  maritime  jurisdiction,  or  of  prize  or  no  prize,  a  tran- 
script of  the  record,  as  directed  by  law  to  be  made,  and  copies 
of  the  proofs,  and  of  such  entries  and  papers  on  file  as  may 
be  necessary  on  the  hearing  of  the  appeal,  shall  be  trans- 
mitted to  the  Supreme  Court:  Provided,  That  either  the 
court  below  or  the  Supreme  Court  may  order  any  original 
document  or  other  evidence  to  be  sent  up,  in  addition  to 
the  copy  of  the  record,  or  in  lieu  of  a  copy  of  a  part  there- 
of. And  on  such  appeals  no  new  evidence  shall  be  received 
in  the  Supreme  Court,  except  in  admiralty  and  prize  causes." 

Record  on  appeal  as  made  up  by  the  clerk  of  the  lower  court 
if  complete  contains  the  following  papers  and  proceedings:  The 


§  2067         APPELLATE  PROCEDURE  IN  EQUITY  519 

bill  of  complaint;  process  or  subpoena,  with  the  proper  return  of 
the  marshal  indorsed  thereon ;  the  answer  or  other  defensive  plead- 
ing; the  testimony,  exhibits,  etc.,  of  both  parties,  plaintiff  and 
defendant;  the  opinion  and  decree  of  the  court;  the  petition  for 
appeal;  the  assignment  of  error;  bond  on  appeal;  the  citation  on 
appeal  and  the  clerk's  certificate.38 

It  is  not  always  necessary,  however,  that  all  of  these  papers 
and  proceedings  are  necessary  for  a  hearing  of  the  appeal,  and 
therefore  it  may  be  stipulated  by  counsel  for  the  opposing  party 
that  certain  proceedings  may  be  omitted  from  the  record. 

If,  when  the  record  reaches  the  appellate  court,  anything  has 
been  omitted  therefrom  which  is  considered  necessary  for  a  hear- 
ing of  the  appeal,  the  proper  procedure  is  for  counsel  to  suggest  to 
the  appellate  court  a  diminution  of  the  record,  whereupon  the 
omitted  portion  will,  if  considered  necessary  by  the  court,  be 
ordered  sent  up. 

§  2067.  Reduction  and  Preparation  of  Record  on  Appeal 
and  Error  to  Supreme  Court. 

Pt.  Supreme  Court  Rule  8,  Sub.  1.  "In  order  to  enable 
the  clerk  of  the  court  (to  which  any  writ  of  error  may  be 
directed)  to  perform  such  duty  (i.  e.,  transmitting  copy  of 
the  record),  and  for  the  purpose  of  reducing  the  size  of 
transcripts  of  records  in  cases  brought  to  this  court  by  appeal 
or  writ  of  error,  by  eliminating  all  papers  not  necessary  to 
the  consideration  of  questions  to  be  reviewed,  it  shall  be 
the  duty  of  the  appellant  or  plaintiff  in  error,  or  his  attorney, 
to  file  with  the  clerk  of  the  lower  court,  together  with  proof 
or  acknowledgment  of  service  of  a  copy  on  the  appellee  or 
defendant  in  error,  or  his  counsel,  a  precipe,  which  shall 
indicate  the  portions  of  the  record  to  be  incorporated  into 
the  transcript  of  the  record  on  such  appeal  or  writ  of  error. 
Should  the  appellee,  or  defendant  in  error,  or  his  counsel, 
desire  additional  portions  of  the  record  incorporated  into 
the  transcript  of  the  record  to  be  filed  in  this  court,  he  shall 
file  with  the  clerk  of  the  lower  court  his  precipe  also,  within 
ten  days  thereafter  (unless  the  time  shall  be  enlarged  by 
a  judge  of  the  lower  court),  indicating  such  additional  por- 
tions of  the  record  desired  by  him. 

38  See  instruction  for  preparation  of  record  contained  in  Rules  of  C.  C. 
A.  for  the  4th  and  8th  Circuits,  Appendix,  post. 


5:20        .MONTGOMERY'S  MANUAL  OF  FEDERAL  pROCEurui:    § 

"The  clerk  of  the  lower  court  shall  transmit  to  this  court, 
as  the  transcript  of  the  record  in  the  case,  only  the  portions 
of  the  record  below  designated  by  both  parties  as  above  pro- 
vided. 

''The  parties  or  their  counsel,  however,  may  agree,  by 
written  stipulation  to  be  filed  with  the  clerk  of  the  lower 
court,  the  portions  of  the  record  which  shall  constitute  the 
transcript  of  record  on  appeal,  or  writ  of  error,  and  the 
clerk  in  such  case  shall  transmit  only  the  papers  designated 
in  such  stipulation. 

"If  this  court  shall  find  that  portions  of  the  record  un- 
necessary to  a  proper  presentation  of  the  case  have  been  in- 
corporated into  the  transcript  by  either  party,  the  court 
may  order  that  the  whole  or  any  part  of  the  clerk's  fee  for 
supervising  the  printing,  and  of  the  cost  of  printing  the 
record,  be  paid  by  the  offending  party." 

§  2068.  Reduction  and  Preparation  of  Record  under  New 
Equity  Rules. 

Equity  Rule  75.c    "In  case  of  appeal : 

"(a)  It  shall  be  the  duty  of  the  appellant  or  his  solicitor 
to  file  with  the  clerk  of  the  court  from  which  the  appeal  is 
prosecuted,  together  with  proof  or  acknowledgment  of  serv- 
ice of  a  copy  on  the  appellee  or  his  solicitor,  a  precipe  which 
shall  indicate  the  portions  of  the  record  to  be  incorporated 
into  the  transcript  on  such  appeal.  Should  the  appellee  or 
his  solicitor  desire  additional  portions  of  the  record  incor- 
porated into  the  transcript,  he  shall  file  with  the  clerk  of 
the  court  his  precipe  also  within  ten  days  thereafter,  unless, 
the  time  shall  be  enlarged  by  the  court  or  a  judge  thereof,, 
indicating  such  additional  portions  of  the  record  desired  by 
him. 

u(b)  The  evidence  to  be  included  in  the  record  shall  not 
be  set  forth  in  full,  but  shall  be  stated  in  simple  and  con- 
densed form,  all  parts  not  essential  to  the  decision  of  the 
questions  presented  by  the  appeal  being  omitted  and  the 
testimony  of  witnesses  being  stated  onlv  in  narrative  form, 
save  that  if  either  party  desires  it,  and  the  court  or  judge 
so  directs,  any  part  of  the  testimony  shall  be  reproduced  in 
the  exact  words  of  the  witness.  The  duty  of  so  condensing 
and  stating  the  evidence  shall  rest  primarily  on  the  appellant, 
who  shall  prepare  his  statement  thereof  and  lodge  the  same  , 

«  See  Equity  Rule  75,  with  Annotations,  in  Appendix,  post. 


§  2068          APPELLATE  PROCEDURE  IN  EQUITY  521 

in  the  clerk's  office  for  the  examination  of  the  other  parties 
at  or  before  the  time  of  filing-  his  precipe  under  paragraph 
(a)  of  this  rule.  He  shall  also  notify  the  other  parties  or 
their  solicitors  of  such  lodgment,  and  shall  name  a  time 
and  place  when  he  will  ask  the  court  or  judge  to  approve 
the  statement,  the  time  so  named  to  be  at  least  ten  days 
after  such  notice.  At  the  expiration  of  the  time  named 
or  such  further  time  as  the  court  or  judge  may  allow,  the 
statement,  together  with  any  objections  made  or  amendments 
proposed  by  any  party,  shall  be  presented  to  the  court  or  the 
judge,  and  if  the  statement  be  true,  complete  and  prop- 
erly prepared,  it  shall  be  approved  by  the  court  or  judge, 
and  if  it  be  not  true,  complete  or  properly  prepared,  it  shall 
be  made  so  under  the  direction  of  the  court  or  judge  and 
shall  then  be  approved.  When  approved,  it  shall  be  filed 
in  the  clerk's  office  and  become  a  part  of  the  record  for  the 
purposes  of  the  appeal.. 

"(c)  If  any  difference  arise  between  the  parties  concern- 
ing directions  as  to  the  general  contents  of  the  record  to  be 
prepared  on  the  appeal,  such  difference  shall  be  submitted 
>  to  the  court  or  judge  in  conformity  with  the  provisions  of 
paragraph  (b)  of  this  rule  and  shall  be  covered  by  the  direc- 
tions which  the  court  or  judge  may  give  on  the  subject." 

Equity  Rule  76.A  "In  preparing  the  transcript  on  an 
appeal,  especial  care  shall  be  taken  to  avoid  the  inclusion  of 
more  than  one  copy  of  the  same  paper  and  to  exclude  the 
formal  and  immaterial  parts  of  all  exhibits,  documents  and 
other  papers  included  therein ;  and  for  any  infraction  of 
this  or  any  kindred  rule  the  appellate  court  may  withhold 
or  impose  costs  as  the  circumstances  of  the  case  and  the 
discouragement  of  like  infractions  in  the  future  may  require. 
Costs  for  such  an  infraction  may  be  imposed  upon  offending 
solicitors  as  well  as  parties. 

"If,  in  the  transcript,  anything  material  to  either  party 
be  omitted  by  accident  or  error,  the  appellate  court,  on  a 
proper  suggestion  or  its  own  motion,  may  direct  that  the 
omission  be  corrected  by  a  supplemental  transcript." 

Equity  Rule  77. e  "When  the  questions  presented  by  an 
appeal  can  be  determined  by  the  appellate  court  without  an 

d  See  Equity  Rule  76,  with  Annotations,  in  Appendix,  post. 
«  See  Equity  Rule  77,  with  Annotations,  in  Appendix,  post. 


522        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2070 

examination  of  all  the  pleadings  and  evidence,  the  parties, 
with  the  approval  of  the  district  court  or  the  judge  thereof, 
may  prepare  and  sign  a  statement  of  the  case  showing  how 
the  questions  arose  and  were  decided  in  the  district  court  and 
setting  forth  so  much  only  of  the  facts  alleged  and  proved, 
or  sought  to  be  proved,  as  is  essential  to  a  decision  of  such 
questions  by  the  appellate  court.  Such  statement,  when  filed 
in  the  office  of  the  clerk  of  the  district  court,  shall  be  treated 
as  superseding,  for  the  purposes  of  the  appeal,  all  parts  of 
the  record  other  than  the  decree  from  which  the  appeal  is 
taken,  and,  together  with  such  decree,  shall  be  copied  and 
certified  to  the  appellate  court  as  the  record  on  appeal." 

§  2069.  Printing  and  Filing  of  Record  on  Appeal  and 
Error  to  Circuit  Courts  of  Appeal. 

Paragraph  1,  Act  Feb.  13,  1911,  ch.  147,  Comp.  St.  1911, 
p.  275,  1912  Supp.  F.  8.  A.  v.  1,  p.  255.  "That  in  any 
cause  or  proceeding  wherein  the  final  judgment  or  decree  is 
sought  to  be  reviewed  on  appeal  to,  or  writ  of  error  from,  a 
United  States  circuit  court  of  appeals  the  appellant  or  plain- 
tiff in  error  shall  cause  to  be  printed  under  such  rules  as 
the  lower  court  shall  prescribe,  and  shall  file  in  the  office 
of  the  clerk  of  such  circuit  court  of  appeals  at  least  twenty 
days  before  the  case  is  called  for  argument  therein,  at  least 
twenty-five  printed  transcripts  of  the  record  of  the  lower 
court,  and  of  such  part  or  abstract  of  the  proofs  as  the  rules 
of  such  circuit  court  of  appeals  may  require,  and  in  such 
form  as  the  Supreme  Court  of  the  United  States  shall  by 
rule  prescribe,  one  of  which  printed  transcripts  shall  be  cer- 
tified under  the  hand  of  the  clerk  of  the  lower  court  and 
under  the  seal  thereof,  and  shall  furnish  three  copies  of 
such  printed  transcript  to  the  adverse  party  at  least  twenty 
days  before  such  argument:  Provided,  That  either  the  court 
below  or  the  circuit  court  of  appeals  may  order  any  original 
document  or  other  evidence  to  be  sent  up  in  addition  to  the 
printed  copies  of  the  record  or  in  lieu  of  printed  copies  of 
a  part  thereof;  and  no  written  or  typewritten  transcript  of 
the  record  shall  be  required." 

§  2070.  Printing  and  Filing  of  Record  on  Appeal  and 
Error  to  Supreme  Court — Use  of  Record  in  Circuit  Court  of 
Appeals  as  Part  of  Transcript. 

Paragraph  2,  Act  Feb.  13,  1911,  ch.  47,  Comp.  St.  1911, 
p.  275',  1912  Supp.  F.  S.  A.  v.  1,  p.  255.  "That  in  any 


§  2072          APPELLATE  PROCEDURE  IN  EQUITY  523 

cause  or  proceeding  wherein  the  final  judgment  or  decree 
is  sought  to  be  reviewed  on  appeal  to  or  by  writ  of  error  or 
of  certiorari  from  the  Supreme  Court  of  the  United  States, 
in  which  the  record  has  been  printed  and  used  upon  the 
hearing  in  the  court  below  and  which  substantially  conforms 
to  the  printed  record  in  said  Supreme  Court,  if  there  have 
been  at  the  time  of  filing  the  record  in  the  court  below  twenty- 
five  copies  of  said  printed  record,  in  addition  to  those  pro- 
vided in  the  preceding  section,  lodged  with  the  clerk  of  the 
court  below,  one  copy  thereof  shall  be  used  by  the  clerk  of 
the  court  below  in  the  preparation  and  as  a  part  of  the  tran- 
script of  the  record  of  the  court  below ;  and  no  fee  shall  be 
allowed  the  clerk  of  the  court  below  in  the  preparation  of 
the  transcript  for  such  part  thereof  as  is  included  in  said 
printed  record  so  lodged  with  him.  And  the  clerk  of  the 
court  below,  in  transmitting  the  transcript  of  record  to  the 
Supreme  Court  of  the  United  States  for  review,  shall  at 
the  same  time  transmit  the  remaining  uncertified  copies  of 
the  printed  record  so  lodged  with  him,  which  shall  be  used 
in  the  preparation  and  as  a  part  of  the  printed  record  in 
the  Supreme  Court  of  the  United  States,  and  the  clerk's 
fee  for  preparing  the  record  for  the  printer,  indexing  the 
same,  supervising  the  printing,  and  binding  and  distributing 
the  copies,  shall  be  at  such  rate  per  folio  thereof,  exclusive 
of  the  printed  record  so  furnished  by  the  clerk  of  the  court 
below,  as  the  Supreme  Court  of  the  United  States  may  from 
time  to  time  by  rule  prescribe ;  and  no  written  or  typewritten 
transcript  of  so  much  of  the  record  as  shall  have  been  print- 
ed as  herein  provided  shall  be  required.  (36  Stat.  at  L. 
901.)  " 

§  2071.  One  Record  Sufficient  When  Both  Parties  Appeal 
to  Supreme  Court  Direct. 

§  1013,  R.  8.,  Comp.  SL  1901,  p.  716,  4  F.  8.  A.  612. 
"Where  appeal  is  duly  taken  by  both  parties  from  the  judg- 
ment or  decree  of  a  circuit  or  district  court  to  the  Supreme 
Court,  a  transcript  of  the  record  filed  in  the  Supreme  Court 
by  either  appellant  may  be  used  on  both  appeals,  and  both 
shall  be  heard  thereon  in  the  same  manner  as  if  records 
had  been  filed  by  the  appellants  in  both  cases." 

§  2072.  Time  for  Return  of  Appeals  and  Writs  of  Error. 

Supreme  Court  Rule  8,  Subd.  5.  "AH  appeals,' writs  of 
error,  and  citations  must  be  made  returnable  not  exceeding 


524        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  207'} 

thirty  days  from  the  day  of  signing  the  citation,  whether 
the  return  clay  fall  in  vacation  or  in  term  time,  and  be  served 
before  the  return  day,  except  in  writs  of  error  and  appeals 
from  California,  Oregon,  Nevada,  Washington,  Xew  Mexico, 
Utah,  Montana,  Arizona,  Wyoming,  North  Dakota,  South 
Dakota,  Alaska,  Idaho,  Hawaii,  and  Porto  Rico,  when  the 
time  shall  be  extended  to  sixty  days,  and  from  the  Philippine 
Islands  to  one  hundred  twenty  days." 

C.  C.  A.  Rule  14,  Sub.  5.  "All  appeals,  writs  of  error, 
and  citations  must  be  made  returnable  not  exceeding  thirty 
days  from  the  day  of  signing  the  citation,  whether  the  re- 
turn day  fall  in  vacation  or  in  term  time,  and  be  served 
before  the  return  day." 

§  2073.  Summary  of  Procedure  on  Appeal.  In  all  appeals, 
whether  from  the  district  courts  to  the  circuit  courts  of  appeal, 
or  from  the  district  courts  direct  to  the  Supreme  Court,  or  from 
the  circuit  courts  of  appeal  to  the  Supreme  Court  in  those  cases 
where  such  appeals  may  be  taken,  the  following  steps  must  be 
taken  in  order  to  get  the  record  into  the  appellate  court : 

First.  Except  in  cases  of  appeals  allowed  in  open  court  at 
the  time  when  the  decree  appealed  from  was  rendered,  a  petition 
for  appeal  (or  writ  of  error)  in  writing  must  be  addressed  to  the 
lower  court,  or,  if  in  vacation,  to  the  judge  thereof. 

Second.  With  this  petition  there  must  be  filed  an  assignment 
of  errors. 

Third.  The  allowance  of  the  appeal  must  be  indorsed  upon  the 
petition  by  the  justice  or  judge  of  the  lower  court,  or  a  separate 
order  allowing  the  appeal  must  be  signed  by  him. 

Fourth.  Before  the  appeal  can  be  perfected  a  satisfactory  bond 
on  appeal  must  be  furnished  by  the  appellant,  which  bond  may  act 
as  a  supersedeas  if  desired.  This  bond  may  be  given  either  at 
the  time  when  the  appeal  is  allowed,  or  within  a  reasonable  time 
thereafter,  and  must  be  approved  by  the  justice  or  judge  allowing 
the  appeal,  and  by  no  one  else. 

Fifth.  The  citation  or  notice  of  appeal,  in  cases  where  it  is 
required,  must  be  signed  by  the  judge  and  served  upon  the  ap- 
pellee. 


§  2074          APPELLATE  PROCEDURE  IN  EQUITY  525 

All  of  these  papers  and  proceedings  are  filed  with  the  clerk 
of  the  court  below,  and  constitute  a  part  of  the  record  on  appeal. 

§  2074.  Review  of  Final  Decisions  of  Circuit  Courts  of 
Appeal  upon  Certiorari. 

PL  §  240,  Judicial  Code,'  86  8 tat.  at  L.  1157,  Comp.  St. 

1911,  p.  228,  1912  Supp.  F.  S.  A.  v.  1,  p.  232.     "In  any 

case,  civil  or  criminal,  in  which  the  judgment  or  decree  of  a 

circuit  court  of  appeals  is  made  final  by  the  provisions  of 

this  title,  it  shall  be  competent  for  the  Supreme  Court  to 

require,  by  certiorari  or  otherwise,  upon  the  petition  of  any 

party  thereto,  any  such  case  to  be  certified  to  the  Supreme 

Court  for  writs  of  review  and  determination  with  the  same 

power  and  authority  in  the  case  as  if  it  had  been  carried 

by  appeal  or  writ  of  error  to  the  Supreme  Court." 

Before  the  petition  for  a  writ  of  certiorari  can  be  submitted 

to  the  Supreme  Court,  the  following  requirements  must  be  complied 

with : 

Before  the  petition  is  placed  on  the  docket,  there  must  be  filed 
with  the  clerk  of  the  Supreme  Court  of  the  United  States  the  orig- 
inal petition  for  the  writ,  bearing  the  signature  of  counsel ;  a  cer- 
tified copy  of  the  transcript  of  the  record,  including  all  proceed- 
ings in  the  circuit  court  of  appeals;  and  appearance  of  counsel 
for  petitioner  signed  by  a  member  of  the  bar  of  the  Supreme 
Court  of  the  United  States;  and  a  deposit  of  twenty-five  dollars 
on  account  of  costs. 

In  addition  to  the  above,  before  the  petition  can  be  submitted 
the  Supreme  Court  requires  "about  two  weeks'  notice"  of  the 
date  fixed  for  the  submission.  Satisfactory  proof  of  service  of 
this  notice,  together  with  proof  of  service  of  copies  of  petition  and 
brief  upon  counsel  for  the  respondent,  must  be  made  and  filed  with 
the  clerk  of  the  Supreme  Court. 

Twenty-five  printed  copies  of  the  petition,  together  with  twenty- 
five  printed  copies  of  brief  in  support  thereof,  if  there  are  any 
such,  and  at  least  nine  uncertified  copies  of  the  record,  containing 
all  proceedings  in  the  circuit  court  of  appeals,  must  be  filed  with 
the  clerk  before  the  petition  is  submitted. 

'For   Annotation   of   this   §   240,   Judicial   Code,   see   footnote*,   ante,   our 
§  840. 


526        MONTGOMERY'S  MANUAL  OF  FEDERAL,  PBOCEDUKE    §  2074 

No  oral  argument  upon  petition  for  writs  of  certiorari  is  per- 
mitted, and  if  the  respondent  wishes  to  oppose  the  petition,  he  must 
file  twenty-five  copies  of  his  brief  with  the  clerk  of  the  Supreme 
Court.  The  respondent  must  also  enter  an  appearance  signed  by 
a  member  of  the  bar  of  the  Supreme  Court,  and  the  brief  of  re- 
spondent must  also  be  signed  by  a  member  of  that  bar.  The 
presence  of  such  counsel,  however,  is  not  necessary  when  the  peti- 
tion is  submitted. 

All  petitions  for  writs  of  certiorari  must  be  presented  upon 
Monday  (motion  day),  and  all  papers  in  the  case  must  be  filed 
not  later  than  the  Saturday  preceding  the  Monday  fixed  for  sub- 
mission of  the  petition. 

The  above  requirements  constitute  the  substance  of  instructions 
issued  by  James  H.  McKenney,  clerk  of  the  Supreme  Court  of 
the  United  -States.40 

The  following  forms  are  suggested : 

PETITION  FOR  WRIT  OF  CERTIORARI. 

(TITLE  OF  COURT  AND  CAUSE) 

To  the  Honorable  the  Supreme  Court  of  the  United  States": 

The  petition  of    respectfully  shows  to  this  Honorable  Court    (here 

state    facts    and    proceedings    numbered    in    separate    paragraphs    leading    to 
and  including  the  decree  of  the  circuit  court  of  appeals). 

A  certified  copy  of  the  entire  record  of  said  case  in  the  said  circuit  court  of 
appeals  is  hereby  furnished,  attached  to  and  made  a  part  of  this  application 
and  marked  exhibit  "A"  in  compliance  with  Rule  37  of  this  Honorable  Court. 

Your  petitioner  is  advised  and  believes  that  the  said  judgment  of  the 
United  States  circuit  court  of  appeals  in  said  case  is  erroneous,  and  that 
this  Honorable  Court  should  require  the  said  case  to  be  certified  to  it  for  its 
review  and  determination  in  conformity  with  the  provision  in  §  240,  Judicial 
Code,  said  case  being  made  final  in  said  circuit  court  of  appeals  by  the 
provision  §  128,  Judicial  Code. 

The  said  case  was  decided  in  said  circuit  court  of  appeals  (here  set  forth 
argument  advanced  against  the  decision  of  the  circuit  court  of  appeals  and 
the  reasons  why  it  should  be  reviewed  by  the  Supreme  Court). 

WHEREFORE  your  petitioner  respectfully  prays  that  a  writ  of  certiorari 
may  be  issued  out  of  and  under  the  seal  of  this  court,  directed  to  the  United 

States  circuit  court  of  appeals  for  the circuit,  commanding  the  said 

court  to  certify  and  send  to  this  court,  on  a  day  certain  to  be  therein  designat- 
ed, a  full  and  complete  transcript  of  the  record  and  all  proceedings  of  the  said 

*"  See  Appendix. 


APPELLATE  PROCEDURE  IN  EQUITY  527 

circuit  court  of  appeals  in  the  said  case,  entitled  v 

No ,  to  the  end  that  the  said  case  may  be  reviewed  and  determined  by 

this  court  as  provided  by  section  240,  Judicial  Code,  or  that  your  petitioner 
may  have  such  other  or  further  relief  or  remedy  in  the  premises  as  this 
court  may  deem  appropriate  and  in  conformity  with  said  provision  of  the 
Judicial  Code  and  that  the  said  judgment  of  the  said  circuit  court  of  appeals 
insthe  said  case  and  every  part  thereof  may  be  reversed  by  this  Honorable 
Court. 


Petitioner. 
(Verification.) 

WRIT  OF  CERTIORARI. 

(TITLE  OF  COURT  AND  CAUSE) 
United  States  of  America,  ss. 

The  President  of  the  United  States  of  America,  to  the  Honorable  Judges 
of  the  United  States  circuit  court  for  the   circuit,  GREETING : 

Being   informed   that   there   is   now   pending   before   you   a   suit   in   which 

is  appellant   (or  plaintiff  in  error)    and   

is  appellee  or  (defendant  in  error,)  which  suit  was  removed  to  said  circuit 
court  of  appeals  by  virtue  of  an  appeal  (or  a  writ  of  error)  from  the  district 

court  of  the  United  States  for  the   district  of   ;  and 

we  being  willing  for  certain  reasons,  that  the  said  cause  and  the  record  and 
proceedings  therein  should  be  certified  by  said  circuit  court  of  appeals  and 
removed  into  the  Supreme  Court  of  the  United  States,  do  hereby  command 
you  that  you  send  without  delay  to  the  said  Supreme  Court,  as  aforesaid,  the 
record  and  proceedings  in  said  cause,  so  that  the  said  Supreme  Court  may 
act  thereon  as  of  right  and  according  to  law  ought  to  be  done. 

Witness   the  Honorable    ,   Chief   Justice   of   the   Supreme 

Court  of  the  United  States. 


Clerk  of  the  Supreme  Court. 

§  2075.  Certification  by  Circuit  Courts  of  Appeal  to  Su- 
preme Court. 

PL  §  239,  Judicial  Code*  36  8 tat.  at  L.  1157,  Camp.  St. 
1911,  p.  228, 1912  Supp.  F.  8.  A.v.l,  p.  231.  "In  any  case 
within  its  appellate  jurisdiction  .  .  .  the  circuit  court 
of  appeals  at  any  time  may  certify  to  the  Supreme  Court  of 
the  United  States  any  questions  or  propositions  of  law  con- 
cerning which  it  desires  the  instruction  of  that  court  for  its 
proper  decision ;  and  thereupon  the  Supreme  Court  may  eith- 
er give  its  instruction  on  the  questions  and  propositions 

K  For  Annotation  of  this  §  239,  Judicial  Code,  see  footnote  a,  ante,  our 
§  840. 


528        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2076 

certified  to  it,  which  shall  be  binding  upon  the  circuit  court 
of  appeals  is  such  case,  or  it  may  require  that  the  whole 
record  and  cause  be  sent  up  to  it  for  its  consideration,  and 
thereupon  shall  decide  the  whole  matter  in  controversy  in 
the  same  manner  as  if  it  had  been  brought  there  for  review 
by  writ  of  error  or  appeal." 

In  view  of  the  final  clause  of  the  section  above  quoted,  the  only 
difference  in  procedure  upon  a  review  of  this  class  of  cases  is  in 
the  manner  of  getting  the  questions  before  the  Supreme  Court, 
subsequent  proceedings  being  the  same  as  if  the  cause  had  been 
brought  there  by  writ  of  error  or  appeal. 

The  form  of  the  certificate  is  substantially  as  follows : 

CERTIFICATE  OF  QUESTIONS  BY  CIRCUIT  JUDGES  TO  THE  SUPREME 

COURT. 

The  United  States  Circuit  Court  of  Appeals  for  the Circuit. 

(Title  of  Cause.) 

Appeal  from  the  District  Court  of  the  United  States  for  the District 

of 

This  cause  coming  on  for  hearing  before  the  court  after  full  argument,  it  is 
ordered,  in  view  of  the  important  questions  arising  with  the  record  and  the 
doubt  which  the  court  has  as  to  the  correct  decision  thereof  that  certain 
questions  shall  be  certified  to  the  Supreme  Court  of  the  United  States  for  its 
instruction  thereon,  that  accompanying  said  question  there  shall  also  be.  a 
statement  from  which  such  question  can  be  fully  understood;  which  question 
and  the  statement  accompanying  them,  are  as  follows: 
(Questions  and  statements  are  here  set  forth.) 

(To  be  signed  by  all  judges.) 

§  2076.  Appellate  Procedure — District  Courts  of  Alaska 
to  the  Supreme  Court. 

Ft,  §  247,  Judicial  Code*  36  Stat.  at  L.  1158,  Comp.  St. 
1911,  p.  230,  1912  Supp.  F.  8.  A.  v.  1,  p.  234.  "Appeals 
and  writs  of  error  may  be  taken  and  prosecuted  from  final 
judgments  and  decrees  of  the  district  court  for  the  district  of 
Alaska  or  any  division  thereof,  direct  to  the  Supreme  Court 
of  the  United  States  (in  the  cases  enumerated)  within  the 
same  time,  in  the  same  manner,  and  under  the  same  regula- 

l»  For  Annotation  of  this   §   247,  Judicial  Code,   see   footnote  J,   ante,  our 
§  2015. 


APPELLATE  PROCEDURE  IN  EQUITY  529 

tions  as  writs  of  error  and  appeals  are  taken  from  the  district 
court  to  the  Supreme  Court." 

This  procedure  is  included  within  the  first  class  of  appeals 
enumerated  in  §  2050,  supra,  and  the  practice  is  the  same  as  that 
in  appeals  from  district  courts  direct  to  the  United  States  Supreme 
Court,  heretofore  described. 


§  2077.  Appellate  Procedure — From  Supreme  and  District 
Courts  of  Porto  Rico. 

Pi.  §  244,  Judicial  Code,1  36  8 tat.  at  L.  1151,  Comp.  St. 
1911,  p.  229,  1912  Hupp.  F.  8.  A.  v.  1,  p.  234-  "Such  writs 
of  error  and  appeals  (from  final  judgments  and  decrees  of  the 
Supreme  Court  of  and  the  United  States  district  court  for 
Porto  Rico  in  the  cases  enumerated  in  chapter  39)  shall  be 
taken  within  the  same  time,  in  the  same  manner,  and  under 
the  same  regulation  as  writs  of  error  and  appeals  are  taken 
to  the  Supreme  Court  of  the  United  States  from  the  district 
courts." 

Appellate  procedure  in  this  class  of  cases  therefore  falls  within 
the  first  class  of  appeals  enumerated  in  §  2050,  supra,  and  what 
has  been  said  with  regard  to  such  procedure  applies  as  well  to 
appeals  and  writs  of  error  from  the  courts  of  Porto  Rico. 

§  2078.  Appellate  Procedure — From  Supreme  Court  of 
Philippines. 

Pi:  §  248,  Judicial  Code?  36  Stat.  at  L.  1158,  Comp.  St. 
1911,  p.  230,  1912  Supp.  F.  8.  A.  v.  1,  p.  234-  "Such  final 
judgments  and  decrees  (of  the  supreme  court  of  the  Philip- 
pine Islands  in  the  cases  enumerated  in  chapter  39)  may  and 
can  be  reviewed,  reversed,  modified,  or  affirmed  by  said 
supreme  court  on  appeal  or  writ  of  error  by  the  party  ag- 
grieved within  the  same  time,  in  the  same  manner,  under 
the  same  regulation,  and  by  the  same  procedure,  as  far  as 
applicable,  as  the  final  judgments  and  decrees  of  the  district 
courts  of  the  United  States." 

*  For  Annotation  of  this  §  244,  Judicial  Code,  see  footnote  h,  ante,  our 
§  2013. 

J  For  Annotation  of  this  §  248,  Judicial  Code,  see  footnote  k,  ante,  our 
§  20] 6. 

Montg.— 34. 


530        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2080 

The  procedure  upon  appeal  in  these  cases  also  falls  within  the 
first  classification  enumerated  in.  §  2050,  supra. 

§  2079.  Appellate  Procedure — From  District  of  Columbia. 
PL  §  250,  Judicial  Code*  36  Stat.  at  L.  1159,  Comp.  St. 
1911,  p.  231,  1912  Supp.  F.  8.  A.  v.  1,  p.  235.  "Writs  of  er- 
ror and  appeals  (from  final  judgments  or  decrees  of  the  court 
of  appeals  of  the  District  of  Columbia  in  the  cases  enumerat- 
ed and  discussed  in  §  2018  of  chapter  39)  shall  be  taken  with- 
in the  same  time,  in  the  same  manner,  and  under  the  same 
regulation,  as  writs  of  error  and  appeals  are  taken  from  the 
circuit  courts  of  appeals  to  the  Supreme  Court  of  the  United 
States." 

Appellate  procedure  in  the  cases  covered  by  this  section  falls 
within  the  third  class  of  appeals  enumerated  in  §  2050  infra,  and 
the  discussion  of  that  class  of  appeals  applies  to  appellate  pro- 
cedure under  this  section. 

§  2080.  Appellate  Procedure — From  District  of  Columbia, 
Where  Decision  of  Circuit  Court  of  Appeals  is  otherwise 
Final. 

§  251,  Judicial  Cade,1  36  Stat.  at  L.  1159,  Comp.  St. 
1911,  p.  232, 1912  Supp.  F.  S.  A.  v.  1,  p.  236.  "In  any  case 
in  which  the  judgment  or  decree  of  such  court  of  appeals  is 
made  final  by  the  section  last  preceding,  it  shall  be  competent 
for  the  Supreme  Court  of  the  United  States  to  require,  by 
certiorari  or  otherwise,  any  such  case  to  be  certified  to  it 
for  review  and  determination  with  the  same  power  and  au- 
thority in  the  case  as  if  it  had  been  carried  by  writ  of  error 
or  appeal  to  said  Supreme  Court.  It  shall  also  be  competent 
for  said  court  of  appeals,  in  any  case  in  which  its  judgment 
or  decree  is  made  final  under  the  section  last  preceding,  at 
any  time  to  certify  to  the  Supreme  Court  of  the  United  States 
any  questions  or  propositions  of  law  concerning  which  it  de- 
sires the  instruction  of  that  court  for  its  proper  decision ; 
and  thereupon  the  Supreme  Court  may  either  give  its  in- 
struction on  the  question  and  propositions  certified  to  it, 

1*  For  Annotation  of  this  §  250,  Judicial  Code,  see  footnote  m,  ante,  our 
§  2018. 

1  For  Annotation  of  this  §  251,  Judicial  Code,  see  footnote  n,  ante,  our 
§  2019. 


§  2081          APPELLATE  PROCEDURE  IN  EQUITY  531 

which  shall  be  binding  upon  said  court  of  appeals  in  such 
case,  or  it  may  require  that  the  whole  record  and  cause  be 
sent  up  to  it  for  its  consideration,  and  thereupon  shall  de- 
cide the  whole  mattej  in  controversy  in  the  same  manner 
as  if  it  had  been  brought  there  for  review  by  writ  of  error 
or  appeal." 

The  language  of  this  section  is  substantially  the  same  as  that 
of  §§  239  and  240,  Judicial  Code,  which  applies  to  appeals  from 
circuit  courts  of  appeals  of  the  various  circuits  to  the  Supreme 
Court,  and  the  procedure  under  the  above-quoted  section  is  the 
same  as  that  discussed  under  §§  239,  240,  Judicial  Code  in 
§§  2074,  2075,  supra. 

§  2081.  Appellate  Procedure — From  Supreme  Court  of 
Hawaii  to  United  States  Supreme  Court. 

Pi.  §  246,  Judicial  Code,™  36  Stat.  at  L.  1158,  Camp  St. 
1911,  p.  230,  1912  Supp.  F.  8.  A.  v.  1,  p.  233.  "Writs  of 
error  and  appeals  from  the  final  judgments  and  decrees  of  the 
supreme  court  of  the  territory  of  Hawaii  may  be  taken  and 
prosecuted  to  the  Supreme  Court  of  the  United  States  within 
the  same  time,  in  the  same  manner,  under  the  same  regula- 
tions, and  in  the  same  classes  of  cases  in  which  writs  of  error 
and  appeals  from  the  final  judgments  and  decree  of  the  high- 
est court  of  the  state  in  which  a  decision  in  a  suit  could  be 
had,  may  be  taken  and  prosecuted  to  the  Supreme  Court  of 
the  United  States  under  the  provisions  of  §  237  Judicial 
Code'41  and  also  in  all  cases  wherein  the  amount  involved  ex- 
clusive of  costs,  .  .  .  exceeds  the  sum  or  value  of  $5,000." 

The  language  of  this  section  providing  that  "writs  of  error 
and  appeals  .  .  .  may  be  taken  .  .  .  within  the  same 
time,  in  the  same  manner,  and  under  the  same  regulations,  and  in 
the  same  classes  of  cases  in  which  writs  of  error  and  appeals 
from  the  final  judgments  and  decrees  of  the  highest  court  of  the 
state,  etc.,"  is  misleading,  inasmuch  as  there  is  no  appeal  from 

«  See  ch.  11. 

m  For  Annotation  of  this  §  246,  Judicial  Code,  see  footnote  I,  ante,  our 
S  2014. 


532        MONTGOMERY'S  MANTAI,  <n    i  I.DKKAL  PROCEI>L*RE    §  2081 

the  decisions  of  a  state  court  of  last  resort ;  all  such  cases,  whether 
at  law  or  in  equity,  being  reviewed  by  writ  of  error. 

The  procedure  in  such  cases  is  governed  by  §  1003,  R.  S.,  Comp. 
St.  1901,  p.  713,  4  F.  S.  A.  616,42  and  'is  identical  with  that  upon 
error  to  the  United  States  Supreme  Court,  discussed  in  chapter  28. 

The  following  form  of  writ  may  be  employed : 


WRIT  OF  ERROR  TO  THE  SUPREME  COURT  OF  HAWAII. 

. 

(TITLE   OF   TRIAL  COURT  AND   CAUSE.) 
THE  UNITED  STATES  OF  AMERICA  SS. 

The  President  of  the  United  States  of  America  to  the  Supreme  Court  of  the 
Territory  of  Hawaii,  Greeting: 

Because  in  the  record  and  proceedings  as  also  in  the  rendition  of  the  judg- 
ment and  decree  which  is  in  the  said  supreme  court  of  the  territory  of 
Hawaii,  before  you  or  some  of  you,  being  the  highest  court  of  law  or  equity 
of  said  territory  in  which  a  decision  could  be  had  in  the  said  suit,  where  was 
drawn  in  question  the  validity  of  a  treaty  or  statute  of,  or  an  authority 
exercised  under,  the  United  States  and  the  decision  was  against  their  validity; 
(or  here  state  any  other  Federal  question  involved)  a  manifest  error  has 

happened  to  the  great  damage  of   ,  plaintiff  in  error  herein 

as  by  their  assignment  of  errors  appears,  we  being  willing  that  error,  if  any 
there  be,  should  be  duly  corrected,  and  full  justice  done  to  the  parties  aforesaid 
in  this  behalf,  do  command  you  if  judgment  be  therein  given,  that  then 
under  your  seal,  distinctly  and  openly  you  send  the  record  and  proceedings 
aforesaid,  with  all  things  concerning  the  same,  to  the  Supreme  Court  of  the 
United  States,  so  that  you  have  the  same  at  Washington  within  thirty  days 
from  the  date  hereof  in  the  said  Supreme  Court  to  be  then  and  there  heard, 
that  the  record  and  proceedings  aforesaid  being  inspected,  the  said  Supreme 
Court  may  cause  further  to  be  done  therein  to  correct  that  error,  if  any  there 
be,  what  of  right  should  be  done  according  to  the  laws  of  the  United  States. 

WITNESS   the   Honorable    .  v'.'.:..1V'.' Chief   Justice   of   the   said 

Supreme  Court  this day  of A.  D.  191 . . . 


Clerk  of  the  Supreme  Court  of 

the  Territory  of  Hawaii. 
(Seal  of  the  Supreme  Court, 
Title  of  Court  and  Cause.) 

Allowed  by 


Chief  Justice  of  the  Supreme  Court 
of  the  Territory  of  Hawaii. 


§  825  supra. 


§  2083          APPELLATE  PROCEDURE  IN  EQUITY  533 

§  2082.  Certiorari  Ninth  Circuit  to  Supreme  Court  in 
Alaska  Cases. 

Pt.  §  134,  Judicial  Code,"  36  Stat.  at  L.  1134,  Comp.  St. 
1911,  p.  195,  1912  Supp.  F.  8.  A.  v.  l,p.  197.  "Whenever 
such  circuit  court  of  appeals  (for  the  ninth  circuit)  may  de- 
sire the  instruction  of  the  Supreme  Court  of  the  United  States 
upon  any  question  or  proposition  of  law  which  shall  have 
arisen  in  such  case,  the  court  may  certify  such  question  or 
proposition  to  the  Supreme  Court,  and  thereupon  the  Su- 
preme Court  shall  give  its  instruction  upon  the  question  or 
proposition  certified  to  it,  and  its  instruction  shall  be  bind- 
ing upon  the  circuit  court  of  appeals." 

The  cases  covered  by  this  section  are  those  in  wThich  appeals 
may  be  taken  from  district  courts  of  Alaska  to  the  circuit  court 
of  appeals  for  the  ninth  circuit,  the  decision  of  said  circuit  court 
of  appeals  being  final  except  for  the  review  by  the  Supreme 
Court  as  above  provided.  The  language  of  the  section  is  similar 
to  that  of  §  239,  Judicial  Code,  which  provides  for  like  procedure 
in  all  cases  decided  by  the  circuit  courts  of  appeals  of  the  various 
circuits,  in  which  their  judgments  are  otherwise  final,  and  the 
effect  of  the  section  above  quoted  is  to  provide  the  same  procedure 
in  this  class  of  appeals  from  the  district  courts  of  Alaska,  as  is 
provided  by  §  239,  Judicial  Code,  in  parallel  appeals  from  dis- 
trict courts  of  the  United  States. 

§  2083.  Procedure  after  Transcript  Reaches  Appellate 
Court. 

Pt.  Sup.  Ct.  Rule  8,  a-nd  Cir.  Ct.  App.  Rule  14.  "No  case 
will  be  heard  until  a  complete  record  containing  in  itself, 
and  not  by  reference,  all  the  papers,  exhibits,  depositions, 
and  other  proceedings  which  are  necessary  to  the  hearing  in 
this  court,  shall  be  filed." 

This  rule  having  been  complied  with  the  cause  is  docketed, 
heard,  and  decided  in  accordance  with  the  rules  of  the  particular 
appellate  court  to  which  the  cause  has  been  taken.  It  is  not  prac- 

n  For  Annotation  of  this  §  134,  Judicial  Code,  see  footnote  t»,  ante,  our  §  842. 


534         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE   §  2084 

ticable  in  a  manual  of  this  size  to  here  set  forth  at  length  the  pro- 
visions of  all  these  rules.  They  are  contained  in  the  Appendix, 
and  to  them  the  practitioner  must  refer  for  information  as  to 
docketing,  printing,  and  filing  of  brief,  time  for  argument,  and  all 
the  details  relating  to  the  conduct  of  the  appeal  before  the  appellate 
tribunal. 

§  2084.  Dismissal  of  Appeal.  Under  the  rules  of  the  Supreme 
Court  and  the  circuit  courts  of  appeals,  the  appellee  may  secure 
the  dismissal  of  an  appeal  upon  any  of  the  following  grounds : 

1.  Transcript  not  properly  filed  or  cause  not  docketed  before 
return  day  named  in  citation.*8 

2.  Record  not  printed  in  time.4* 

3.  Nonappearance  of  counsel  for  appellant  or  failure  to  file 
brief.*6 

4.  Appearance  not  entered  when  case  calls.*6 

5.  Requisite  numbers  of  copies  of  brief  not  filed,  or  not  filed  in 
time.*7 

6.  By  stipulation  filed  with  clerk  in  vacation.*8 

7.  Neither  party  prepared  to  argue  cause  upon  second  call 
when  called  at  two  successive  terms.*9 

8.  Failure  of  deceased  appellants,  representatives  to  appear.60 
In   addition   to   the   above-named  grounds   prescribed  by  the 

rules,  the  following,  held  by  the  courts  sufficient  to  warrant  dis- 
missal, have  been  gathered  together  and  set  forth  in  Simkins  "A 
Federal  Equity  Suit,"  (2d  ed.)  chapter  115: 

9.  Appellant  may  dismiss  by  leave  of  court.61 

10.  When  it  appears  that  further  prosecution  is  collusive.58 

«Sup.  Ct.  Rule     9,  C.  C.  A.  Rule  16.  See  Appendix. 

44  Sup.  Ct.  Rule  10,  C.  C.  A.  Rule  23.  See  Appendix. 

«  Sup.  Ct.  Rule  16,  C.  C.  A.  Rule  22.  See  Appendix. 

46  Sup.  Ct.  Rule  18,  C.  C.  A.  Rule  22.  See  Appendix. 

47  Sup.  Ct.  Rule  21,  C.  C.  A.  Rule  24.  See  Appendix. 
«  Sup.  Ct.  Rule  28,  C.  C.  A.  Rule  20.  See  Appendix. 
4»  Sup.  Ct.  Rule  19.     See  Appendix. 

60  C.  C.  A.  Rule  19.     See  Appendix. 

61  United  States  v.  Griffith,  141  U.  S.  212,  35  L.  ed.  719,  11  Sup.  Ct.  Rep. 
1005. 

62  Mills  v.  Green,  159  U.  S.  654,  40  L.  ed.  293,  16  Sup.  Ct.  Rep.  132 ;  Benner 
v.  Hayes,  26  C.  C.  A.  271,  80  Fed.  953;  Weaver  v.  Kelley,  92  Fed.  421,  34  C. 
C.  A.  423. 


§  2084         APPELLATE  PROCEDURE  IN  EQUITY  535 

11.  When  there  is  no  material  issue.53 

12.  When  the  question  is  moot,  or  some  abstract  proposition.64 

13.  Where  relief  becomes  impossible.55 

14.  An  appeal  will  be  dismissed  if  no  citation  is  sued  out,  or 
sued  out  and  not  served,  but  the  regular  appearance  of  appellee 
waives  it.56 

15.  An  appeal  will  be  dismissed  when  based  on  grounds  affect- 
ing the  jurisdiction  of  the  court  a  quo,  or  the  jurisdiction  of  the 
appellate  court,  as  when  the  appeal  was  not  sued  out  within  the 
time  limited.67 

16.  When  decree  joint,  and  appeal  by  one  without  notice  to 
others.68 

17.  WThen  no  assignment  of  errors  or  brief.59 

To  procure  the  dismissal  of  an  appeal,  a  written  motion  must 
be  prepared  and  filed,  and  notice  given  in  accordance  with  Supreme 
Court  Rule  6,  §  3,  and  Circuit  Court  of  Appeals  Rule  21,  §  3. 

The  motion  may  be  in  the  following  form : 

MOTION  TO  DISMISS. 

(Title  of  Court  and  Cause.) 

The  appellee  moves  the  Court  to  dismiss  the  appeal  filed  herein  for  the 
following  reasons: 

1.  Because,  etc.,   (setting  forth  the  facts  upon  which  the  motion  is  based). 


Solicitor. 

53  Allen  v.  Georgia,  166  U.  S.  140,  41  L.  ed.  949,  17  Sup.  Ct.  Rep.  525. 

54Kimball  v.  Kimball,  174  U.  S.  158,  43  L.  ed.  932,  19  Sup.  Ct.  Rep.  639; 
United  States  v.  Evans,  213  U.  S.  297,  53  L.  ed.  803,  29  Sup.  Ct.  Rep.  507; 
Mills  v.  Green,  159  U.  S.  653,  40  L.  ed.  293,  16  Sup.  Ct.  Rep.  332. 

55  Mills  v.  Green,  159  U.  S.  653,  40  L.  ed.  293,  16  Sup.  Ct.  Rep.  132;   Flour 
Inspectors  v.  Glover,  160  U.  S.  170,  40  L.  ed.  382,   16  Sup.  Ct.  Rep.      321; 
Katz  v.  San  Antonio,  34  C.  C.  A.  10,  63  U.  S.  App.  452,  91  Fed.  567 ;  Game- 
well  Fire  Alarm  Teleg.  Co.  v.  Municipal  Signal  Co.  23  C.  C.  A.  250,  33  U. 
S.  App.  714,  77  Fed.  492 ;  Lockwood  v.  Wickes,  21  C.  C.  A.  257,  36  U.  S.  App. 
321,  40  U.  S.  App.  136,  75   Fed.  118,  as  when  statutes  repealed.     Flour  In- 
spectors v.  Glover,  160  U.  S.  170,  40  L.  ed.  382,  16  Sup.  Ct.  Rep.  321:   Board 
of  Flour  Inspectors  v.  Glover,  161  U.  S.  103,  40  L.  ed.  632,  16  Sup.  Ct.  Rep. 
492. 

56  Peace  River  Phosphate  Co.  v.  Edwards,  17  C.  C.  A.  359.  30  U.  S.  App. 
513,  70  Fed.  728;  Freeman  v.  Clay,  1  C.  C.  A.  115,  2  U.  S.  App.  151,  48  Fed. 
849. 

57  Gorman  Wright  Co.  v.  Wright,  67  C.  C.  A.  345,  134  Fed.  363-365:  Great 
Southern  Fire  Proof  Hotel  Co.  v.  Jones,  177  U.  S.  449-453,  44  L.  ed.  842-844, 
20  Sup.  Ct.  Rep.  690 ;  Waxahachie  v.  Coler,  34  C.  C.  A.  349,  92  Fed.  284. 

58  Fitxpatrick  v.  Graham,  56  C.  C.  A.  95,  119  Fed.  353,  and  cases  cited. 
59Moline  Trust  &  Sav.  Bank  v.  Wiley,  79  C.  C.  A.  440,  149  Fed.  734;  Fitch 

v.  Richardson,  77  C.  C.  A.  422,  147  Fed.  196. 


536         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDI-UK    §  2085 

The  appellant  must  receive  notice  of  the  motion,  which  may  be 
served  in  the  following  form: 

(Title  of  Court  and  Cause.) 

To    appellant,  and    his  counsel: 

Please  take  notice  that  the  appellee  will,  on  the day  of   , 

191..,  or  as  soon  thereafter  as  counsel  can  be  heard,   submit  to  the  above 

entitled  court  at    ,  his  motion  to  dismiss  the  appeal  now   pending  in 

this  cause,  a  copy  of  which  is  attached  to  this  notice. 


Solicitor. 

§  2085.  Diminution  of  Record.  If  the  transcript  is  incom- 
plete or  defective,  the  proper  practice  is  a  suggestion  of  diminution 
of  the  record,  which  is  done  by  motion  or  petition  in  writing  in  the 
appellate  court. 

Supreme  Court  Rule  14,  C.  C.  A.  Rule  18.  "No  certiorari 
for  diminution  of  the  record  will  be  hereafter  awarded  in  any 
case,  unless  a  motion  therefor  shall  be  made  in  writing,  and 
the  facts  on  which  the  same  is  founded  shall,  if  not  admitted 
by  the  other  party,  be  verified  by  affidavit.  And  all  motions 
for  such  certiorari  must  be  made  at  the  first  term  of  the 
entry  of  the  case;  otherwise,  the  same  will  not  be  granted, 
unless  upon  special  cause  shown  to  the  court,  accounting  sat- 
isfactorily for  the  delay." 

The  petition  may  be,  substantially,  as  follows : 
PETITION  FOR  CERTIORARI  FOR  DIMINUTION  OF  RECORDS.60 

(Title  of  Court  and  Cause.) 

To  the  Honorable  Justices  of  the  Supreme  Court  of  the  United  States: 

The  petition  of  respectfully  shows  to  this  Honorable  Court 

as  follows  (here  set  forth  the  failure  of  the  clerk  in  the  lower  court  to 
incorporate  in  the  record  those  proceedings  for  the  lack  of  which  the  diminu- 
tion is  suggested,  or  whatever  the  circumstances  are,  which  are  responsible 
for  the  diminution) : 

WHEREFORE  your  petitioner  prays  that  a  writ  of  certiorari  may  be  issued 
out  of  and  under  the  seal  of  this  court,  directed  to  the  United  States  circuit 

court  of  appeals  for  the circuit  (or  whatever  court  the  appeal 

may  have  been  taken  from)    commanding  the  said  court  to  certify  and  send 

eo  M.  K.  &  T.  Ry.  Co.  v.  Dinsmore,  108  U.  S.  30,  27  L.  ed.  640,  2  Sup.  Ct. 
Rep.  9. 


§  2086          APPELLATE  PROCEDURE  IN  EQUITY  537 

to  this  court  on  a  day  certain  to  be  therein  designated,  a  full  and  complete 
transcript  of  all  and  every  part  of  the  record  and  proceedings  of  the  said  court 

in  the  said  case  therein  entitled,    v 

No ,  remaining  on  file  in  the  office  of  the  clerk  of  the  said  court,  and 

not  embodied  in  the  transcript  on  appeal  in  the  said  cause  already  filed  in 
this  court  (or  specify  what  parts  of  the  record  it  is  desired  to  have  sent  up). 


Petitioner. 


It  seems  that  the  motion  or  petition  must  be  verified,  unless 
the  facts  therein  stated  are  admitted.61 


§  2086.  Mandate.  Mandate  is  the  command  of  the  appellate 
court,  directing  the  lower  court  in  its  disposition  of  a  cause  after 
its  determination  upon  appeal  or  writ  of  error. 

It  is  issued  by  the  clerk  of  the  appellate  court,  in  accordance 
with  the  rules  of  that  court,62  and  in  form  substantially  as  fol- 
lows : 

WRIT  OF  MANDATE  TO  DISTRICT   COURT  ON   REVERSAL. 

(Title  of  Court  and  Cause.) 
United  States  of  America,  ss. 

The  President  of  the  United  States  of  America,  to  the  Honorable  Judges  of 

the  District  court  of  the  United  States  for  the district  of 

:     GREETING. 

(Seal  of  the  U.  S.  Supreme  Court.) 

Whereas,  lately  in  the  district  court  of  the  United  States  for  the 

district  of    before  you,  or  some  of  you,  in  a  cause  between 

appellant  and  appellee,  wherein  the  decree  of 

such  district  court  entered  in  said  cause  on  the   day  of   

191..,  is  in  the  following  words,  viz: 

"(Here  set  forth  the  decree  verbatim.)" 

As  by  the  inspection  of  the  transcript  of  the  record  which  was  brought  into 
the  Supreme  Court  of  the  United  States  by  virtue  of  an  appeal  taken  by 

,   according  to   the   act   of   Congress   in   such   case   made   and 

provided,  fully  appears. 

And  whereas,  on  the   ......   day  of   191.  .,  the  said  cause 

came  on  to  be  heard  before  the  said  Supreme  Court,  on  the  said  transcript  of 
record,  on  appeal,  and  was  argued  by  counsel. 

61  Chappell  v.  United  States,  160  U.  S.  499,  40  L.  ed.  510,  16  Sup.  Ct.  Rep. 
397. 

62  C.  C.  A.  Rule  32,  Supreme  Ct.  Rule  24,  §  5,  and  Rule  3!).     See  Appendix. 


538         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE  §  2087 

ON  CONSIDERATION  WHEREOF  IT  IS  NOW  HERE  ORDERED,  AD- 
JUDGED AND  DECREED  BY  THIS  COURT  that  the  decree  of  said  district 
court  in  this  cause  be,  and  the  same  is  hereby  reversed,  with  costs  to  the 

original  plaintiff,  ,  against  the  defendant  

( Here  set  forth  the  decree  of  the  Supreme  Court. ) 

And  it  is  further  ordered  that  this  cause  be,  and  the  same  is  hereby,  re- 
manded to  the  said  district  court  for  further  proceedings  in  conformity  with 
the  opinion  of  this  court. 

You,  therefore,  are  hereby  commanded  that  such  execution  and  further  pro- 
ceedings be  had  in  said  cause,  in  conformity  with  the  opinion  and  the  decree 
of  this  court,  as  according  to  right  and  justice,  and  the  laws  of  the  United 
States,  ought  to  be  had,  the  said  appeal  notwithstanding. 

WITNESS  the  Honorable ,  Chief  Justice  of  the  United 

States  this day  of A.  D.  191 ... 


Clerk  of  the  Supreme  Court  of  the 
United  States. 

Upon  receipt  of  the  mandate  by  the  lower  court,  nothing  is 
left  except  for  that  court  to  carry  it  into  execution.68  If,  in  ex- 
ecuting the  directions  contained  in  the  writ  of  mandate,  either 
party  believes  that  the  lower  court  has  misconstrued  those  direc- 
tions, his  remedy  is  by  appeal  or  mandamus.64 

In  such  appeals  the  original  judgment  is  not  reviewable,  the 
only  question  being  as  to  the  proper  compliance  with  the  direc- 
tions contained  in  the  writ  of  mandate.66 

If  the  writ  of  mandate  is  clear,  leaving  nothing  to  the  discre- 
tion of  the  lower  court,  and  the  action  of  that  court  does  not  con- 
form to  the  mandate,  the  proper  remedy  is  not  appeal,  but  man- 
damus.66 


§  2087.  Death  of  Party  after  Judgment,  but  before  Appeal. 
Prior  to  the  act  of  March  3,  1875,  it  was  the  practice,  upon  the 
death  of  a  party  after  judgment  had  been  rendered,  and  before  the 

63  Durrant  v.  Storrow,  101  U.  S.  555,  25  L.  ed.  961 ;  Great  Northern  R.  Co. 
v.  W.  U.  Tel.  Co.  174  Fed.  321,  98  C.  C.  A.  193;   In  re  S.  F.  &  T.  Co.  160 
U.  S.  247,  40  L.  ed.  414,  16  Sup.  Ct.  Rep.  291. 

64  In  re  Blake,  175  U.  S.  117,  44  L.  ed.  94,  20  Sup.  Ct.  Rep.  42;  Metcalf  v. 
Watertown,  68  Fed.  861,  16  C.  C.  A.  37 ;  James  v.  Central  Trust  Co.  108  Fed. 
931,  47  C.  C.  A.  374. 

65  United  States  v.  Camou,  184  U.  S.  572,  46  L.  ed.  694,  22  Sup.  Ct.  Rep.  505. 

66  In  re  Stanford  Fork  &  Tool  Co.  160  U.  S.  247,  40  L.  ed.  44,  16  Sup.  Ct. 
Rep.  291;   Mason  v.  Pewabic  Min.  Co.  153   U.  S.  361,  38  L.  ed.  745,  14  Sup. 
Ct.  Rep.  847 :  In  re  Blake,  175  U.  S.  117,  44  L.  ed.  94,  20  Sup.  Ct.  Rep.  42. 


§  2088         APPELLATE  PEOCEDURE  IN  EQUITY  539 

time  for  taking  an  appeal  had  elapsed,  to  apply  to  the  court  below 
for  an  order  reviving  tfye  suit  in  the  name  of  the  representative 
of  the  deceased.67 

Section  9  of  that  act,  however,  made  all  formal  revival  pro- 
ceedings unnecessary,  the  representative  of  the  deceased  being 
merely  required  to  file  a  certified  copy  of  his  appointment.  § 
297,  Judicial  Code,  repeals  the  act  of  Mar.  3,  1875,  and  furnishes 
no  substitute  for  it.  Consequently  the  old  practice  of  formally 
applying  for  revivor  in  the  name  of  the  representative  of  the 
deceased  is  again  necessary. 

§  2088.  Death  of  Party  while  Appeal  to  Supreme  Court 
Pending. 

§§.Z  and  2,  Supreme  Court  Rule  15.  "1.  Whenever,  pend- 
ing a  writ  of  error  or  appeal  in  this  court,  either  party  shall 
die,  the  proper  representatives  in  the  personalty  or  realty 
of  the  deceased  party,  according  to  the  nature  of  the  case, 
may  voluntarily  come  in  and  be  admitted  parties  to  the 
suit,  and  thereupon  the  case  shall  be  heard  and  determined 
as  in  other  cases ;  and  if  such  representatives  shall  not  volun- 
tarily become  parties,  then  the  other  party  may  suggest  the 
death  on  the  record,  and  thereupon,  on  motion,  obtain  an 
order  that  unless  such  representatives  shall  become  parties 
within  the  first  ten  days  of  the  ensuing  term,  the  party 
moving  for  such  order,  if  defendant  in  error,  shall  be  en- 
titled to  have  the  writ  of  error  or  appeal  dismissed ;  and  if 
the  party  so  moving  shall  be  plaintiff  in  error,  he  shall  be 
entitled  to  open  the  record,  and  on  hearing  have  the  judg- 
ment or  decree  reversed,  if  it  be  erronous:  Provided,  how- 
ever, That  a  copy  of  every  such  order  shall  be  printed  in 
some  newspaper  of  general  circulation  within  the  state,  ter- 
ritory, or  district  from  which  the  case  is  brought,  for  three 
successive  weeks,  at  least  sixty  days  before  the  beginning  of 
the  term  of  the  Supreme  Court  then  next  ensuing. 

"2.  When  the  death  of  a  party  is  suggested,  and  the  rep- 
resentatives of  the  deceased  do  not  appear  by  the  tenth  day 
of  the  second  term  next  succeeding  the  suggestion,  and  no 
measures  are  taken  by  the  opposite  party  within  that  time 
to  compel  their  appearance,  the  case  shall  abate." 

«7  McClane  v.  Boone,  6  Wall.  246,  18  L.  ed.  836. 


540        MONTQOMEKY'S  MANUAL  OF  FEDERAL  PROCEDI-KE    §  2089 

§  2089.  Supreme  Court  Procedure  upon  Death  of  Party 
Whose  Personal  Representative  is  without  Jurisdiction  of 
Trial  Court. 

§  3,  Supreme  Court  Rule  15.  "3.  When  either  party  to 
a  suit  in  a  circuit  court  of  the  United  States  shall  desire  to 
prosecute  a  writ  of  error  or  appeal  to  the  Supreme  Court  of 
the  United  States  from  any  final  judgment  or  decree  ren- 
dered in  the  circuit  court,  and  at  the  time  of  suing  out  such 
writ  of  error  or  appeal  the  other  party  to  the  suit  shall  be 
dead  and  have  no  proper  representative  within  the  jurisdic- 
tion of  the  court  which  rendered  such  final  judgment  or 
decree,  so  that  the  suit  cannot  be  revived  in  that  court,  but 
shall  have  a  proper  representative  in  some  state  or  territory 
of  the  United  States,  the  party  desiring  such  writ  of  error 
or  appeal  may  procure  the  same,  and  may  have  proceedings 
on  such  judgment  or  decree  superseded  or  stayed  in  the  same 
manner  as  is  now  allowed  by  law  in  other  cases,  and  shall 
thereupon  proceed  with  such  writ  of  error  or  appeal  as  in 
other  cases.  And  within  thirty  days  after  the  commence- 
ment of  the  term  to  which  such  writ  of  error  or  appeal  is 
returnable,  the  plaintiff  in  error  or  appellant  shall  make  a 
suggestion  to  the  court,  supported  by  affidavit,  that  the  said 
party  was  dead  when  the  writ  of  error  or  appeal  \vas  taken 
or  sued  out,  and  had  no  proper  representative  within  the 
jurisdiction  of  the  court  which  rendered  said  judgment  or 
decree,  so  that  the  suit  could  not  be  revived  in  that  court, 
and  that  said  party  had  a  proper  representative  in  some  state 
or  territory  of  the  United  States,  and  stating  therein  the 
name  and  character  of  such  representative  and  the  state  or 
territory  in  which  such  representative  resides;  and,  upon 
such  suggestion,  he  may,  on  motion,  obtain  an  order  that, 
unless  such  representative  shall  make  himself  a  party  within 
the  first  ten  days  of  the  ensuing  term  of  the  court,  the  plain- 
tiff in  error  or  appellant  shall  be  entitled  to  open  the  record, 
and,  on  hearing,  have  the  judgment  or  decree  reversed  if 
the  same  be  erroneous:  Provided,  however,  That  a  proper 
citation  reciting  the  substance  of  such  order  shall  be  served 
upon  such  representative,  either  personally  or  by  being  left 
at  his  residence,  at  least  sixty  days  before  the  beginning  of 
the  term  of  the  Supreme  Court  then  next  ensuing:  And 
provided,  also,  That  in  every  such  case,  if  the  representative 
of  the  deceased  party  does  not  appear  by  the  tenth  day  of 
the  term  next  succeeding  said  suggestion,  and  the  measures 


APPELLATE  PROCEDURE  IN  EQUITY  541 

above  provided  to  compel  the  appearance  of  such  represen- 
tative have  not  been  taken  within  time  as  above  required  by 
the  opposite  party,  the  case  shall  abate:  And  provided,  also, 
That  the  said  representative  may  at  any  time  before  or 
after  said  suggestion  come  in  and  be  made  a  party  to  the 
suit,  and  thereupon  the  case  shall  proceed,  and  be  heard 
and  determined  as  in  other  cases." 

§  2090.  Death  of  Party  Pending  Appeal  to  Circuit  Court 
of  Appeals. 

Par.  1  and  2,  C.  C.  A.  Rule  19.  "1.  Whenever,  pending  a 
writ  of  error  or  appeal  in  this  court,  either  party  shall  die, 
the  proper  representatives  in  the  personalty  or  realty  of  the 
deceased  party,  according  to  the  nature  of  the  case,  may 
voluntarily  come  in  and  be  admittecTparties  to  the  suit,  and 
thereupon  the  case  shall  be  heard  and  determined  as  in  other 
cases ;  and,  if  such  representatives  shall  not  voluntarily  be- 
come parties,  then  the  other  party  m$j  suggest  the  death  on 
the  record,  and  thereupon,  on  motion,  obtain  an  order  that, 
unless  such  representatives  shall  become  parties  within  sixty 
days,  the  party  moving  for  such  order,  if  defendant  in  error, 
shall  be  entitled  to  have  the  writ  of  error  or  appeal  dis- 
missed, and,  if  the  party  so  moving  shall  be  plaintiff  in  error, 
he  shall  be  entitled  to  open  the  record,  and,  on  hearing,  have 
the  judgment  or  decree  reversed,  if  it  be  erroneous :  Provided, 
however,  That  a  copy  of  every  such  order  shall  be  personally 
served  on  said  representatives  at  least  thirty  days  before  the 
expiration  of  such  sixty  days. 

"2.  When  the  death  of  a  party  is  suggested,  and  the  rep- 
resentatives of  the  deceased  do  not  appear  within  ten  days 
after  the  expiration  of  such  sixty  days,  and  no  measures 
are  taken  by  the  opposite  party  within  that  time  to  compel 
their  appearance,  the  case  shall  abate." 

§  2091.  Procedure  in  Circuit  Court  of  Appeals  Where 
Representative  of  Deceased  is  Not  within  Trial  Court's  Ju- 
risdiction. 

Par.  3,  C.  C.  A.  Rule  19.  "When  either  party  to  a  suit 
in  a  district  court  of  the  United  States  shall  desire  to  prose- 
cute a  writ  of  error  or  appeal  to  this  court  from  any  final 
judgment  or  decree  rendered  in  the  circuit  or  district  court, 
and  at  the  time  of  suing  out  such  writ  of  error  or  appeal, 
the  other  party  to  the  suit  shall  be  dead  and  have  no  proper 


542         MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE   §  2091 

representative  within  the  jurisdiction  of  the  court  which 
rendered  such  final  judgment  or  decree,  so  that  the  suit  can- 
not be  revived  in  that  court,  but  shall  have  a  proper  rep- 
resentative in  some  state  or  territory  of  the  United  States, 
or  in  the  District  of  Columbia,  the  party  desiring  such  writ 
of  error  or  appeal  may  procure  the  same,  and  may  have 
proceedings  on  such  judgment  or  decree  superseded  or  stayed 
in  the  same  manner  as  is  now  allowed  by  law  in  other  cases, 
and  shall  thereupon  proceed  with  such  writ  of  error  or 
appeal  as  in  other  cases.  And  within  thirty  days  after  the 
filing  of  the  record  in  this  court,  the  plaintiff  in  error  or  ap- 
pellant shall  make  a  suggestion  to  the  court,  supported  by 
affidavit,  that  the  said  party  was  dead  when  the  writ  of  error 
or  appeal  was  taken  or  sued  out,  and  had  no  proper  repre- 
sentative within  the  jurisdiction  of  the  court  which  rendered 
such  judgment  or  decree,  so  that  the  suit  could  not  be  re- 
vived in  that  court,  and  that  said  party  had  a  proper  repre- 
sentative in  some  state  or  territory  of  the  United  States,  or 
in  the  District  of  Columbia,  and  stating  therein  the  name 
and  character  of  such  representative,  and  the  state  or  terri- 
tory or  district  in  which  such  representative  resides;  and 
upon  such  suggestion  he  may  on  motion  obtain  an  order  that, 
unless  such  representative  shall  make  himself  a  party  within 
ninety  days,  the  plaintiff  in  error  or  appellant  shall  be  en- 
titled to  open  the  record,  and  on  hearing  have  the  judgment 
or  decree  reversed,  if  the  same  be  erroneous :  Provided,  how- 
ever, That  a  proper  citation;  reciting  the  substance  of  such 
order,  shall  be  served  upon  such  representative  either  per- 
sonally or  by  being  left  at  his  residence,  at  least  thirty  days 
before  the  expiration  of  such  ninety  days:  Provided,  also, 
That  in  every  such  case,  if  the  representative  of  the  deceased 
party  does  not  appear  within  ten  days  after  the  expiration 
of  such  ninety  days,  and  the  measures  above  provided  to 
compel  the  appearance  of  such  representative  have  not  been 
taken  within  the  time  as  above  required,  by  the  opposite 
party,  the  case  shall  abate ;  And  provided,  also,  That  the  said 
representative  may,  at  anv  time  before  or  after  said  sugges- 
tion, come  in  and  be  made  a  party  to  the  suit,  and  thereupon 
the  suit  shall  proceed,  and  be  heard  and  determined  as  in 
other  cases." 


CHAPTEK  42. 

CRIMINAL  PROCEDURE. 

Sec. 

2100.  Criminal  Jurisdiction  of  the  District  Court. 

2101.  Places  within  Which  the  Criminal  Laws  of  the  United  States  Apply. 

2102.  Penal  Laws  Enforced  in,  and  Governing  the  Federal  Courts. 

2103.  Adoption  of  State  Penal  Laws  for  Reserved   Federal  Territory  within 

State  Boundaries. 

2104.  State  and  Federal  Jurisdictions  of  Offenses. 

2105.  Jurisdiction   of   State   Courts   under   State  Laws   Not  Affected. 

2106.  Venue  of  Criminal  and  Penal  Prosecutions. 

2107.  Statutes  of  Limitations — Criminal  Cases. 

2108.  How  Offenses  are  Prosecuted. 

2109.  Qualifications  and  Exemptions  of  Jurors  Same  as  under  State  Laws. 

2110.  Jurors  Not  Disqualified  on  Account  of  Race,  Color,  or  Previous  Condi- 

tion of  Servitude. 

2111.  Jurors  Drawn  from  District  under  Court's  Direction.     ' 

2112.  Impaneling  Jurors. 

2113.  Venire — Issuance  and  Return. 

2114.  Special  Juries. 

2115.  When  Grand  Jury  Summoned. 

2116.  Grand  Jury  to  Have  Not  Less  Than  16  Nor  More  Than  23  Members — 

Talesmen. 

2117.  Foreman  of  Grand  Jury. 

2118.  Discharge  of  Grand  Juries. 

2119.  Grand  Jury  Indictments  by  at  Least  12  Jurors. 

2120.  Form  of  Indictment  for  Perjury. 

2121.  Form  of  Indictment  for  Subornation  of  Perjury. 

2122.  Form   of   Indictment   before   a  Navy   Court-Martial. 

2123.  Joining  Charges  against  a  Person  in  One  Indictment — Consolidation  of 

Indictments. 

2124.  Defects  of  Form  in  Indictment — Immaterial  unless  Prejudicial. 

2125.  Judgment  Respondeat  Ouster  on  Demurrer  to  an  Indictment. 

2126.  Arrest — Imprisonment — Bail — Removal     for     Trial — Offenders     against 

the  United  States. 

2127.  Marshal   Making  Arrest  to  Take  Prisoner  to  Nearest  Judicial   Officer 

and  Return  before  Such  Officer  the  Warrant  with  Certified  Copy  of 
Complaint  Attached. 

543 


MO-NTGOMEJUYs   MAiX  UAL  OF  FEDEHAL,  PKOCEDURE 

Sec. 

2128.  Officers  Authorized  to  Hold  to  Security  of  the  Peace  and  for  Good  Be- 

havior. 

2129.  Bail   Admitted   in   Cases  Not  Capital. 

2130.  Bail  Admitted  in  Capital  Cases  only  by  Court  or  Judge. 

2131.  Bail  in  Criminal  Cases  Removed  by  Writ  of  Error  from  State  Court. 

2132.  Bail— Surrender  of. 

2133.  New  Bail  as  Better  Security. 

2134.  Recognizance — Remittance   of — Forfeiture  of. 

2135.  Copy  of  Writ — Jailer's  Authority  and  Original  Returned  with  Officer's 

Return. 

2136.  Writ  for   Removal   of  Prisoner  from  One  District  to  Another. 

2137.  One  Writ  Sufficient  Where   Several  Indictments  against  Same   Person. 

2138.  No  Writ  Necessary  to  Bring  into  Court  Person  in  Custody. 

2139.  Duty  of  District  Attorney  to  Prosecute. 

2140.  Standing  Mute — Plea  Not  Guilty. 

2141.  Indicted  of  Treason  or  Capital  Offense  Entitled  to  Copy  of  Indictment 

and  List  of  Jurors  and  Witnesses. 

2142.  Persons  Indicted  for  Capital  Crimes  Entitled  to  Counsel  and  to  Compel 

Witnesses. 

2143.  Accused  Has  Right  to  Trial  by  Jury. 

2144.  Peremptory  Challenges — Criminal  Cases. 

2145.  Excessive  Peremptory  Challenges  in  Capital  Cases  Disregarded. 

2146.  Challenges  in  Prosecutions  for  Bigamy  or  Polygamy. 

2147.  Trial  of  Criminal  Cases. 

2148.  Verdict  for  Less  Offense  than  Charged. 

2149.  Verdict  against  One  or  More  Several  Joint  Defendants. 

2150.  Qualified  Verdict  in  Cases  of  Murder  in  First  Degree  or  Rape. 

2151.  Execution  Postponed  in  Capital  Case  Carried  to  Appellate  Court. 

2152.  Judgments  for  Fines — How  Collected. 

2153.  Discharge  of  Indigent  Convicts  Imprisoned  for  Fines. 

2154.  Confinement  in  State  Jail  or  Penitentiary  When  Use  of  so  Allowed  by 

State  Law. 

2155.  Where  No  Penitentiary  or  Jail  Suitable  or  Available  Attorney  General 

May  Designate  in  a  Convenient  State  or  Territory — Transportation 
of  Prisoners — Change  of  Place  to  Preserve  Health  or  Custody  of 
Prisoner  or  Because  of  His  Improper  or  Cruel  Treatment. 

2156.  Transportation  of  Criminals  to  Places  of  Imprisonment  by  Marshal. 

2157.  Confinement  of  Juvenile  Offenders  under  Sixteen  in  House  of  Refuge. 

2158.  Confinement  of  Juvenile  Offenders  under  Twenty  Separate  from  Prison- 

ers over  Twenty. 

2159.  Mitigation  or  Remission  of  Fine,  etc.,  by  Secretary  of  Treasury  upon 

Summary  Investigation  by  District  Judge. 

2160.  Same — Rules  and  Mode  of  Proceeding  may  be  Prescribed  by  Secretary 

of  Treasury. 

2161.  Same — Penalty   of   Imprisonment   cr    Removal   from    Office   Excepted — 

Preservation  of  Informer's  Right  to  Share  of  Fine,  etc. 

2162.  Execution  of  Death  Penalty. 

216:5.  Death  Penalty  Abolished  except  in  Certain  Cases. 


§  2101  CRIMINAL,  PROCEDURE  545 

Sec. 

2164.  Life  Imprisonment  Substituted  for  Death  Penalty  when  Lesser  Penalty 

in  Court's  Discretion. 

2165.  No   Corruption   of   Blood   or   Forfeiture  of   Estate. 

2166.  Whipping  and  pillory  Abolished. 
21Q7.  Pardoning  Power  of  the  President. 
2168.  Parole  of  Prisoners. 

§  2100.  Criminal  Jurisdiction  of  the  District  Court. 

Par.  Second,  §  24,  Judicial  Code?  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  135,  1912  Supp.  F.  8.  A.  v.  1,  p.  139. 
"Of  all  crimes  and  offenses  cognizable  under  authority  of 
the  United  States." 

Par.  Ninth,  §  24,  Judicial  Code,  36  Stat.  at  L.  1091, 
Comp.  St.  1911,  p.  136,  1912  Supp.  F.  S.  A.  v.  1,  p.  139. 
"Of  all  suits  and  proceedings  for  the  enforcement  of  penal- 
ties and  forfeitures  incurred  under  any  law  of  the  United 
States." 

This  jurisdiction  is  exclusive  of  the  state  courts  under  para- 
graphs first  and  second  of  §  256,  Judicial  Code,  Comp.  St.  1911, 
p.  234,  1912  Supp.  F.  S.  A.  v.  1,  p.  238. 

§  2101.  Places  within  Which  the  Criminal  Laws  of  the 
United  States  Apply. 

§811}  Penal  Code,  1909  Supp.  F.  S.  A.  p.  490.  "Except 
as  otherwise  expressly  provided,  the  offenses  defined  in  this 
chapter  shall  be  punished  as  hereinafter  provided,  when 
committed  within  any  territory  or  district  or  within  or  upon 
any  place  within  the  exclusive  jurisdiction  of  the  United 
States." 

§  272,  Penal  Code,  1909  Supp.  F.  S.  A.  p.  481.  "The 
crimes  and  offenses  defined  in  this  chapter  shall  be  punished 
as  herein  prescribed : 

"First.  When  committed  upon  the  high  seas,  or  on  any 
other  waters  within  the  admiralty  and  maritime  jurisdic- 
tion of  the  United  States  and  out  of  the  jurisdiction  of  any 
particular  state,  or  when  committed  within  the  admiralty 
and  maritime  jurisdiction  of  the  United  States  and  out  of 

» For  Annotation  of  this  S  24,  Judicial  Code,  see  footnote  b,  ante,  our 
§  104. 

Montg.— 35. 


546        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2102 

the  jurisdiction  of  any  particular  state  on  board  any  vessel 
belonging  in  whole  or  in  part  to  the  United  States  or  any 
citizen  thereof,  or  to  any  corporation  created  by  or  under 
the  laws  of  the  United  States,  or  of  any  state,  territory,  or 
district  thereof. 

"Second.  When  committed  upon  any  vessel  registered, 
licensed,  or  enrolled  under  the  laws  of  the  United  States, 
and  being  on  a  voyage  upon  the  waters  of  any  of  the  Great 
Lakes,  namely :  Lake  Superior,  Lake  Michigan,  Lake  Huron, 
Lake  Saint  Clair,  Lake  Erie,  Lake  Ontario,  or  any  of  the 
waters  connecting  any  of  said  lakes,  or  upon  the  River  Saint 
Lawrence  where  the  same  constitutes  the  international  bound- 
ary line. 

"Third.  When  committed  within  or  on  any  lands  reserved 
or  acquired  for  the  exclusive  use  of  the  United  States,  and 
under  the  exclusive  jurisdiction  thereof,  or  any  place  pur- 
chased or  otherwise  acquired  by  the  United  States  by  consent 
of  the  legislature  of  the  state  in  which  the  same  shall  be,  for 
the  erection  of  a  fort,  magazine,  arsenal,  dockyard,  or  other 
needful  building. 

"Fourth.  On  any  island,  rock,  or  key  containing  deposits 
of  guano,  which  may,  at  the  discretion  of  the  President,  be 
considered  as  appertaining  to  the  'United  States." 

§  810,  Penal  Cade  1909,  Supp.  F.  8.  A.  p.  490.  "The 
words  'vessel  of  the  United  States/  wherever  they  occur 
in  this  chapter,  shall  be  construed  to  mean  a  vessel  belong- 
ing in  whole  or  in  part  to  the  United  States,  or  any  citizen 
thereof,  or  any  corporation  created  by  or  under  the  laws  of 
the  United  States,  or  of  any  state,  territory,  or  district  there- 
of." 

§  2102.  Penal  Laws  Enforced  in  and  Governing  the  Fed- 
eral Courts. 

§  722,  R.  S.,  Comp.  Stat.  1901,  p.  582,  4  F.  8.  A.  529, 
Rose's  Code,  §  29.  "The  jurisdiction  in  civil  and  criminal 
matters  conferred  on  the  district  and  circuit  courts  by  the 
provisions  of  this  title,  and  of  title  'Civil  Rights/  and  of 
title  'Crimes/  for  the  protection  of  all  persons  in  the  United 
States  in  their  civil  rights,  and  for  their  vindication,  shall 
be  exercised  and  enforced  in  conformity  with  the  laws  of 
the  United  States,  so  far  as  such  laws  are  suitable  to  carry 
the  same  into  effect;  but  in  all  cases  where  they  are  not 


§  2104  CRIMINAL,  PROCEDURE  547 

adapted  to  the  object,  or  are  deficient  in  the  provisions  nec- 
essary to  furnish  suitable  remedies  and  punish  offenses 
against  law,  the  common  law,  as  modified  and  changed  by  the 
Constitution  and  statutes  of  the  state  wherein  the  court  hav- 
ing jurisdiction  of  such  civil  or  criminal  cause  is  held,  so 
far  as  the  same  is  not  inconsistent  with  the  Constitution  and 
laws  of  the  United  States,  shall  be  extended  to  and  govern 
the  said  courts  in  the  trial  and  disposition  of  the  cause,  and, 
if  it  is  of  a  criminal  nature,  in  the  infliction  of  punishment 
on- the  party  found  guilty." 

§  2103.  Adoption  of  State  Penal  Laws  for  Reserved  Fed- 
eral Territory  within  State  Boundaries. 

§  289,  Penal  Code,  1909  Supp  F.  8.  A.  485.  "Whoever, 
within  the  territorial  limits  of  any  state,  organized  territory, 
or  district,  but  within  or  upon  any  of  the  places  now  existing 
or  hereafter  reserved  or  acquired,  described  in  section  two 
hundred  and  seventy-two  of  this  act,  shall  do  or  omit  the 
doing  of  any  act  or  thing  which  is  not  made  penal  by  any 
law  of  Congress,  but  which,  if  committed  or  omitted  within 
the  jurisdiction  of  the  state,  territory,  or  district  in  which 
such  place  is  situated,  by  the  laws  thereof  now  in  force, 
would  be  penal,  shall  be  deemed  guilty  of  a  like  offense  and 
be  subject  to  a  like  punishment ;  and  every  such  state,  terri- 
torial, or  district  law  shall,  for  the  purpose  of  this  section, 
continue  in  force,  notwithstanding  any  subsequent  repeal  or 
amendment  thereof  by  any  such  state,  territory,  or  district." 

§  2104.  State    and    Federal    Jurisdictions    of    Offenses. 

Except  within  reserved  territory  as  set  out  in  the  preceding  section 
under  §  289,  Penal  Code,  the  Federal  courts  do  not  execute  the 
penal  laws  of  a  state ;  nor  have  they  any  common-law  criminal 
jurisdiction.1 

In  criminal  cases  the  law  administered  is  entirely  Federal, 
provided  and  prescribed  by  Congress  under  the  limitations  of  the 
Constitution.2  The  statute  adopting  state  laws  as  rules  of  decision 

1  United  States  v.  Britton,  108  U.  S.  199,  27  L.  ed.  698,  2  Sup.  Ct.  Rep. 
531;  Benson  v.  McMahon,  127  U.  S.  457,  32  L.  ed.  234,  8  Sup.  Ct.  Rep.  1240; 
Jones  v.  United  States,  137  U.  S.  202,  34  L.  ed.  691,  11  Sup.  Ct.  Rep.  80; 
United  States  v.  Eaton,  144  U.  S.  677,  36  L.  ed.  591,  12  Sup.  Ct.  Rep.  764; 
United  States  v.  Wilson,  3  Blatchf.  (N.  S.)  438,  Fed.  Cas.  No.  16,731;  United 
States  v.  Plummer,  3  Cliff.  28,  Fed.  Cas.  No.  16,056. 

a  United  States  v.  Reid,  12  How.  363,  13  L.  ed.  1023. 


548        MONTGOMERY'S  MANUAL  OF  FEDERAL  PKOCEIM'KK    §  :Mor> 

does  not  apply  to  criminal  ])rosccutions  in  the  Federal  courts.8 
The  laws  of  evidence  in  Federal  criminal  trials  are  those  that 
existed  in  the  states  when  the  judiciary  act  was  adopted  in  1789 
and  as  modified  by  subsequent  acts  of  Congress.4 

The  same  act  may  be  an  offense  against  both  state  and  Federal 
laws.6  But  this  does  not  prevent  the  state  court  taking  jurisdiction 
of  and  punishing  the  act  done  as  an  offense  against  the  state; 
nor  a  territory  from  punishing  an  act  also  punishable  under  Fed- 
eral law.8  So  long  as  the  act  done  is  within  the  punishing  power 
of  both  state  and  nation,  the  fact  that  the  state  courts  may  not 
take  jurisdiction  of  the  crime  as  denounced  by  the  Federal  law 
does  not  prevent  their  punishing  it  under  the  state  law.7  In  a 
sense  there  are  two  distinct  crimes  involved  in  such  cases ;  8  and 
an  acquittal  or  conviction  of  one  does  not  bar  trial  for  the  other 
on  the  ground  of  former  jeopardy.9 

§  2105.  Jurisdiction  of  State  Courts  under  State  Laws  Not 
Affected. 

§  326,  Penal  Code,  1909  Supp.  F.  S.  A.  493.  "Nothing 
in  this  title  shall  be  held  to  take  away  or  impair  the  juris- 
diction of  the  courts  of  the  several  states  under  the  laws 
thereof." 

The  making  of  certain  offenses  against  the  laws  of  the  United 
States  punishable  does  not  prevent  the  states  from  taking  hold 
of  any  offenses  which  may  be  involved  that  are  contrary  to  state 
laws,  and  not  cognizable  under  the  United  States  laws.10 

3  Ibid. 

4  Ibid;   Logan  v.  United  States,  144  U.  S.  263,  36  L.  ed.  429,  12  Sup.  Ct. 
Rep.  617;  United  States  v.  Hall,  53  Fed.  353. 

5  United  States  v.  Marigold,  9  How.  569,  13  L.  ed.  261;  Fox  v.  Ohio,  5  How. 
433,  12  L.  ed.  223;   Moore  v.  Illinois,  14  How.  19,  14  L.  ed.  306:   Ex  parte 
Siebold,  100  U.  S.  390,  25  L.  ed.  724;   United  States  v.  Wells,  28  Fed.  Cas. 
Xo.  16,665;   State  v.  Kirkpatrick,  32  Ark.  121;   People  v.  Welch,  141  N.  Y. 
266,  38  Am.  St.  Rep.  793,  36  N.  E.  328,  24  L.R.A.  117. 

6  Cross  v.  North  Carolina,  132  U.  S.  139,  33  L.  ed.  290.  10  Sup.  Ct.  Rep.  49; 
Crossley  v.  California.  168  U.  S.  641,  42  L.  ed.  610.  18  Sup.  Ct.  Rep.  242. 

7  Pet'tibone  v.  United  States,  148  U.  S.  197,  37  L.  ed.  419,  13  Sup.  Ct.  Rep. 
542. 

8  United  States  v.   ftarnhart.  22  Fed.  285,   10  Sawy.  491;    State  v.  Oleson, 
26  Minn.  507,  5  N.  W.  959. 

9  State  v.  Sly,  4  Or.  279 ;  United  States  v.  Amy,  14  Md.  149,  note,  4  Quart. 
L.  J.   163,  Fed.   Cas.  No.   14.445;   Carter  v.  MeClaughry.   183  U.   S.   365,   46 
L.  ed.  236,  22  Sup.  Ct.  Rep.  181. 

10  Ex  parte  Houghton,  8  Fed.  897. 


§    2106  CRIMINAL   PROCEDURE  549 

§  2  Act  February  13, 1913,  ch.  50,  37  Stat.  at  L.  670.  (Act 
punishing  larceny  and  asportation  of  interstate  shipments.) 
§  2.  That  nothing  in  this  act  shall  be  held  to  take  away  or  im- 
pair the  jurisdiction  of  the  courts  of  the  several  states  under 
"  the  laws  thereof;  and  a  judgment  of  conviction  or  acquittal 
on  the  merits  under  the  laws  of  any  state  shall  be  a  bar  to  any 
prosecution  hereunder  for  the  same  act  or  acts. 

§  2106.  Venue  of  Criminal  and  Penal  Prosecutions.  This 
subject  is  treated  in  §§  174,  175,  177,  and  178,  chapter  5,  supra, 
and  is  only  summarized  here. 

Capital  offenses  in  the  county  where  the  offense  is  committed, 
where  that  can  be  done  without  great  inconvenience  (§  40,  Judicial 
Code). 

Offenses  on  the  high  seas  or  elsewhere  out  of  the  jurisdiction 
of  a  particular  state  or  district,  in  the  district  where  the  offender 
is  found  or  first  brought  (§  41,  Judicial  Code). 

Larceny,  etc.,  of  interstate  shipments  "'in  any  district  wherein 
the  crime  shall  have  been  committed."  Asporting  such  goods  is  a 
separate  offense  and  "prosecutions  therefor  may  be  instituted  in 
any  district  into  which  such  freight,  express,  baggage,  goods,  or 
chattels  shall  have  been  removed  or  into  which  they  shall  have  been 
brought  by  such  offender.  (Act  February  13,  1913,  ch.  50,  37 
Stat.  at  L.  670.) 

Offenses  committed  in  two  districts,  in  either  district  (§  42, 
Judicial  Code). 

Sale  of  arms  and  intoxicants  on  the  Pacific  islands  deemed 
committed  on  high  seas  or  vessel  belonging  to  United  States  (§  309, 
Penal  Code).  Vessel  is  defined  in  §  310,  Penal  Code,  quoted  in 
the  last  part,  §  2101  above. 

Pecuniary  penalties  and  forfeitures  where  they  accrue  or  the 
offender  is  found  (§  43,  Judicial  Code). 

Seizures  made  on  high  seas  for  forfeitures,  where  the  property 
is  seized  (§  45,  Judicial  Code). 

Condemnation  of  insurrectionary  property  where  the  same  is 
seized  or  taken  and  proceedings  first  instituted  (§  46,  Judicial 
Code). 

Seizures  on  embargo  or  insurrection  in  any  district  into  which 


550        MONTGOMERY'S  MANUAL  OF  FEDERAL  PBOCEnriu-:    §  :J110 

the  property  so  seized  may  be  taken  and  proceedings  instituted 
(§  47,  Judicial  Code). 

§  2107.  Statutes  of  Limitations — Criminal  Cases.  Statutes 
of  Limitations  is  the  general  subject  of  chapter  13,  supra.  Limita- 
tions as  to  capital  offenses  are  set  out  in  §  391,  supra ;  offenses  not 
capital  §§  392-3 ;  under  the  customs  revenue  laws,  §  394 ;  under 
internal  revenue  laws,  §  395 ;  seduction  of  female  passenger,  § 
396 ;  violations  of  the  naturalization  laws,  §  397. 

§  2108.  How  Offenses  are  Prosecuted. 

Capital  offenses  or  otherwise  infamous  crimes. 

Pi.  5th  Amend.  U.  8.  Const.  "]STo  person  shall  be  held  to 
answer  for  capital  or  otherwise  infamous  crime,  unless  on  a 
presentment  or  indictment  of  a  grand  jury,  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in  the  militia,  when 
in  actual  service  in  time  of  war  or  public  danger.  .  .  ." 

Offenses  not  infamous. 

§  1022,  R.  S.,  Comp.  Stat.  1901,  p.  720,  1  F.  S.  A.  802, 
Rose's  Code,  §  1574-  "All  crimes  and  offenses  committed 
against  the  provisions  of  chapter  seven,  title  "Crimes,"  which 
are  not  infamous,  may  be  prosecuted  either  by  indictment 
or  by  information  filed  by  a  district  attorney." 

§  2109.  Qualifications  and  Exemptions  of  Jurors  Same  as 
under  State  Laws.  j 

§  275,  Judicial  Code*  36  Stat.  at  L.  1164,  Comp.  St. 
1911,  p.  239,  1912  Supp.  F.  S.  A.  v.  1,  p.  245.  "Jurors  to 
serve  in  the  courts  of  the  United  States,  in  each  state  re- 
spectively, shall  have  the  same  qualifications,  subject  to  the 
provisions  hereinafter  contained,  and  be  entitled  to  the  same 
exemptions,  as  jurors  of  the  highest  court  of  law  in  such  state 
may  have,  and  be  entitled  to  at  the  time  when  such  jurors 
for  service  in  the  courts  of  the  tTnited  States  are  summoned." 

§  2110.  Jurors  Not  Disqualified  on  Account  of  Race,  Col- 
or, or  Previous  Condition  of  Servitude. 

§  278,  Judicial  Code*  36  Stat.  at  L.  1165,  Comp.  St. 

<•  For  Annotation  of  this  §  275.  Judicial  Code,  see  footnote  a,  ante,  our 
§  734. 

«l  For  Annotation  of  this  §  278,  Judicial  Code,  see  footnote.  t>,  ante,  our 
§  735. 


§    2112  CRIMINAL  PROCEDURE  551 

1911,  p.  239,  1912  Supp.  F.  8.  A.  v.  1,  p.  246.  "No  citizen 
possessing  all  other  qualifications  which  are  or  may  be  pre- 
scribed by  law  shall  be  disqualified  for  service  as  grand  or 
petit  juror  in  any  court  of  the  United  States  on  account  of 
race,  color,  or  previous  condition  of  servitude." 

Punishment  of  officers  or  other  persons  selecting  jurors  ex- 
cluding citizens  on  above  grounds  fine  not  more  than  five  thousand 
dollars.  See  §  736,  supra. 

§  2111.  Jurors  Drawn  from  District  under  Court's  Direc- 
tion. 

§  277,  Judicial  Code*  36  Stat.  at  L.  1164,  Comp.  St. 
1911,  p.  239,  1912  Supp.  F.  S.  A.  v.  1,  p.  245.  "Jurors 
shall  be  returned  from  such  parts  of  the  district,  from  time 
to  time,  as  the  court  shall  direct,  so  as  to  be  most  favorable 
to  an  impartial  trial,  and  so  as  not  to  incur  an  unnecessary  ex- 
pense, or  unduly  burden  the  citizens  of  any  part  of  the  dis- 
trict with  such  service." 

§  2112.  Impaneling  Jurors. 

§  276,  Judicial  Code,'  36  Stat.  at  L.  1164,  Comp.  St. 
1911,  p.  239,  1912  Supp.  F.  S.  A.  v,  1,  p.  245.  "All  such 
jurors,  grand  and  petit,  including  those  summoned  during 
the  session  of  the  court,  shall  be  publicly  drawn  from  a  box 
containing,  at  the  time  of  each  drawing,  the  names  of  not  less 
than  three  hundred  persons,  possessing  the  qualifications  pre- 
scribed in  the  section  last  preceding,  which  names  shall  have 
been  placed  therein  by  the  clerk  of  such  court  and  a  commis- 
sioner, to  be  appointed  by  the  judge  thereof,  or  by  the  judge 
senior  in  commission  in  districts  having  more  than  one  judge, 
which  commissioner  shall  be  a  citizen  of  good  standing, 
residing  in  the  district  in  which  such  court  is  held,  and  a 
well-known  member  of  the  principal  political  party  in  the 
district  in  which  the  court  is  held  opposing  that  to  which  the 
clerk  may  belong,  the  clerk  and  said  commissioner  each  to 
place  one  name  in  said  box  alternately,  without  reference  to 
party  affiliations  until  the  whole  number  required  shall  be 
placed  therein." 

e  For  Annotation  of  this  §  277,  Judicial  Code,  see  footnote  d,  ante,  our 
§  738. 

*  For  Annotation  of  this  §  276,  Judicial  Code,  see  footnote  e,  ante,  our 
§  739. 


552        MONTGOMERY'S  .MANUAL  OF  FEDERAL  PKOCEDTUK    §  iMir> 

§  2113.  Venire — Issuance  and  Return. 

§  279 ,  Judicial  Code,"  .id  Stat.  at  L.  1165,  Com/),  ^t. 
1911,  p.  240,  1912  Supp.  F.  S.  A.  v.  1,  p.  246.  "Writs  of 
venire  facias,  when  directed  by  the  Court,  shall  issue  from 
the  clerk's  office,  and  shall  be  served  and  returned  by  the 
marshal  in  person,  or  by  his  deputy;  or,  in  case  the  marshal 
or  his  deputy  is  not  an  indifferent  person,  or  is  interested  ill 
the  event  of  the  cause,  by  such  fit  person  as  may  be  specially 
appointed  for  that  purpose  by  the  court,  who  shall  administer 
to  him  an  oath  that  he  will  truly  and  impartially  serve  and 
return  the  writ.  Any  person  named  in  such  writ  who  resides 
elsewhere  than  at  the  place  at  which  the  court  is  held,  shall 
be  served  by  the  marshal  mailing  a  copy  thereof  to  such 
person,  'commanding  him  to  attend  as  a  juror  at  a  time  and 
place  designated  therein,  which  copy  shall  be  registered  and 
deposited  in  the  postoffice  addressed  to  such  person  at  his 
usual  postoffice  address.  And  the  receipt  of  the  person  so 
addressed  for  such  registered  copy  shall  be  regarded  as  per- 
sonal service  of  such  writ  upon  such  person,  and  no  mileage 
shall  be  allowed  for  the  service  of  such  person.  The  postage 
and  registry  fee  shall  be  paid  by  the  marshal  and  allowed 
him  in  the  settlement  of  his  accounts." 

§  2114.  Special  Juries. 

§  281,  Judicial  Code,11  36  Stat.  at  L.  1165,  Corn  p.  St. 
1911,  p.  240,  1912  Supp.  F.  8.  A.  v.  1,  p.  246.  "When 
special  juries  are  ordered  in  any  district  court,  they  shall  be 
returned  by  the  marshal  in  the  same  manner  and  form  as 
is  required  in  such  cases  by  the  laws  of  the  several  states." 

§  2115.  When  Grand  Jury  Summoned. 

§  284,  Judicial  Code*  36  Stat.  at  L.  1165,  Comp.  St. 
1911,  p.  241.  1912  Supp.  F.  S.  A.  v.  1,  p.  247.  "Xo  grand 
jury  shall  be  summoned  to  attend  any  district  court  unless 
the  judge  thereof,  in  his  own  discretion  or  upon  a  notifica- 
tion by  the  district  attorney  that  such  jury  will  be  needed, 

K  For  Annotation  of  this  §  279,  Judicial  Code,  see  footnote  *,  ante,  our 
§  740. 

h  For  Annotation  of  this  §  281,  Judicial  Code,  see  footnote  *«,  ante,  our 
§  742. 

»  Re-enacting  §  810,  R.  S.,  Rose's  Code,  §  1711,  Foster's  Fed.  Prac.  (4th  ed.) 
p.  1402,  Comp.  St.  1901,  p.  627,  4  F.  S.  A.  744,  as  amended  by  Act  of  March  28, 
1910,  36  Stat.  at  L.  267,  which  are  repealed  by  §  297,  Judicial  Code.  In  gen- 
eral, Powers  v.  United  States,  223  U.  S.  303,  56  L.  ed.  448,  32  Sup.  Ct.  Rep. 
281. 


§    2117  CRIMINAL   PROCEDURE  ,  553 

orders  a  venire  to  issue  therefor.  If  the  United  States  at- 
torney for  any  district  which  has  a  city  or  borough  contain- 
ing at  least  three  hundred  thousand  inhabitants  shall  certify 
in  writing  to  the  district  judge,  or  the  senior  district  judge 
of  the  district,  that  the  exigencies  of  the  public  service  re- 
quire it,  the  judge  may,  in  his  discretion,  also  order  a  venire 
to  issue  for  a  second  grand  jury.  And  said  court  may  in 
term  order  a  grand  jury  to  be  summoned  at  such  time,  and 
to  serve  such  time  as  it  may  direct,  whenever,  in  its  judg- 
ment, it  may  be  proper  to  do  so.  But  nothing  herein  shall 
operate  to  extend  beyond  the  time  permitted  by  law  the  im- 
prisonment before  indictment  found  of  a  person  accused  of 
a  crime  or  offense,  or  the  time  during  which  a  person  so  ac- 
cused may  be  held  under  recognizance  before  indictment 
found." 

§  2116.  Grand  Jury  to  Have  Not  Less  Than  16  Nor  More 
Than  23  Members — Talesmen. 

§  282,  Judicial  Code,1  36  Stat.  at  L.  1165,  Comp.  St. 
1911,  p.  240,  1912  Supp.  F.  S.  A.  v.  1,  p.  246.  "Every 
grand  jury  impaneled  before  any  district  court  shall  consist 
of  not  less  than  sixteen  nor  more  than  twenty-three  persons. 
If  of  the  persons  summoned  less  than  sixteen  attend,  they 
shall  be  placed  on  the  grand  jury,  and  the  court  shall  order 
the  marshal  to  summon,  either  immediately  or  for  a  day 
fixed,  from  the  body  of  the  district,  and  not  from  the  by- 
standers, a  sufficient  number  of  persons  to  complete  the  grand 
jury.  And  whenever  a  challenge  to  a  grand  juror  is  allowed, 
and  there  are  not  in  attendance  other  jurors  sufficient  to 
complete  the  grand  jury,  the  court  shall  make  a  like  order 
to  the  marshal  to  summon  a  sufficient  number  of  persons  for 
that  purpose." 

§  2117.  Foreman  of  Grand  Jury. 

§  283,  Judicial  Code*  36  Stat.  at  L.  1165,  Comp.  St. 
1911,  p.  241,  1912  Supp.  F.  S.  A.  v.  1,  p.  247.  "From  the 
persons  summoned  and  accepted  as  grand  jurors,  the  court 

J  Re-enacting  §  808,  R.  S.,  Rose's  Code,  §  1709,  Comp.  St.  1901,  p.  626.  4 
F.  S.  A.  743,  which  section  is  repealed  by  §  297,  Judicial  Code.  In  general, 
United  States  v.  Merchant's  &  Miners'  Transp.  Co.  et  al.  187  Fed.  363. 

k  Re-enacting  §  809,  R.  S.,  Rose's  Code,  §  1710,  Foster's  Fed.  Prac.  (4th  ed.) 
pp.  1402,  1409,  Comp.  St.  1901,  p.  627,  4  F.  S.  A.  744,  which  section  is  repealed 
by  §  297,  Judicial  Code.  In  general,  Burchett  v.  United  States,  194  Fed.  821, 
114  C.  C.  A.  525. 


554        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2121 

shall  appoint  the  foreman,  who  shall  have  power  to  admin- 
ister oaths  and  affirmations  to  witnesses  appearing  before  the 
grand  jury." 

§  2118.  Discharge  of  Grand  Juries. 

§  285,  Judicial  Code,1  86  Stat.  at  L.  1166,  Comp.  St. 
1911,  p.  241, 1912  Supp.  F.  8.  A.  v.  1,  p.  247.  "The  district 
courts,  the  district  courts  of  the  territories,  and  the  supreme 
court  of  the  District  of  Columbia  may  discharge  their  grand 
juries  whenever  they  deem  a  continuance  of  the  sessions  of 
such  juries  unnecessary." 

§  2119.  Grand  Jury  Indictments  by  at  Least  12  Jurors. 

§  1021,  R.  8.,  Comp.  Stat.  1901,  p.  719,  2  F.  8.  A.  336, 
Rose's  Code,  §  1752.  "No  indictment  shall  be  found,  nor 
shall  any  presentment  be  made,  without  the  concurrence  of 
at  least  twelve  grand  jurors." 

§  2120.  Form  of  Indictment  for  Perjury. 

§  5396,  R.  S.,  Comp.  Stat.  1901,  p.  3655,  5  F.  8.  A.  705. 
"In  every  presentment  or  indictment  prosecuted  against  any 
person  for  perjury,  it  shall  be  sufficient  to  set  forth  the  sub- 
stance of  the  offense  charged  upon  the  defendant,  and  by 
which  court,  and  before  whom  the  oath  was  taken,  averring 
such  court  or  person  to  have  competent  authority  to  adminis- 
ter the  same,  together  with  the  proper  averment  to  falsify 
the  matter  wherein  the  perjury  is  assigned,  without  setting 
forth  the  bill,  answer,  information,  indictment,  declaration, 
or  any  part  of  any  record  or  proceeding,  either  in  law  or 
equity,  or  any  affidavit,  deposition,  or  certificate,  other  than 
as  hereinbefore  stated,  and  without  setting  forth  the  commis- 
sion or  authority  of  the  court  or  person  before  whom  the 
perjury  was  committed." 

§  2121.  Form  of  Indictment  for  Subornation  of  Perjury. 

§  5397,  R.  8.,  Comp.  Stat.  1901,  p.  3655,  5  F.  S.  A.  707, 

Rose's  Code,  §  1576.     "In  every  presentment  or  indictment 

for  subornation  of  perjury  it  shall  be  sufficient  to  set  forth 

1  Re-enacting  §  811,  R.  S.,  Rose's  Code,  §  1712,  Foster's  Fed.  Prac.  (4th  ed.) 
p.  1403,  Comp.  St.  1901,  p.  627,  4  F.  S.  A.  744,  which  is  repealed  by  §  297, 
•Judicial  Code.  Discharge,  Jones  et  al.  v.  United  States,  162  Fed.  417,  89  C. 
C.  A.  303. 


§    2124  CRIMINAL  PKOCEDUKB  555 

the  substance  of  the  offense  charged  upon  the  defendant, 
without  setting  forth  the  bill,  answer,  information,  indict- 
ment, declaration,  or  any  part  of  any  record  or  proceeding, 
either  in  law  or  equity,  or  any  affidavit,  deposition,  or  cer- 
tificate, and  without  setting  forth  the  commission  or  author- 
ity of  the  court  or  person  before  whom  the  perjury  was 
committed,  or  was  agreed  or  promised  to  be  committed." 

§  2122.  Form  of  Indictment  before  a  Navy  Court-Martial. 
§  1023,  R.  S.f  Comp.  Stat.  1901,  p.  720,  5  F.  8.  A.  708, 
Rose's  Code,  §  .2577.  "In  prosecutions  for  perjury  com- 
mitted on  examination  before  a  naval  general  court-martial, 
or  for  the  subornation  thereof,  it  shall  be  sufficient  to  set 
forth  the  offense  charged  on  the  defendant,  without  setting 
forth  the  authority  by  which  the  court  was  held,  or  the  par- 
ticular matters  brought  before,  or  intended  to  be  brought 
before,  said  court." 

§  2123.  Joining  Charges  against  a  Person  in  One  Indict- 
ment— Consolidation  of   Indictments. 

§  1024,  R-  8.,  Comp.  Stat.  1901,  p.  720,  2  F.  8.  A.  337, 
Rose's  Code,  §  1578.  "When  there  are  several  charges 
against  any  person  for  the  same  act  or  transaction,  or  for 
two  or  more  acts  or  transactions  connected  together,  or  for 
two  or  more  acts  or  transactions  of  the  same  class  of  crimes 
or  offenses,  which  may  be  properly  joined,  instead  of  having 
several  indictments  the  whole  may  be  joined  in  one  indict- 
ment in  separate  counts;  and  if  two  or  more  indictments 
are  found  in  such  cases,  the  court  may  order  them  to  be 
consolidated." 

§  2124.  Defects  of  Form  in  Indictment — Immaterial  un- 
less Prejudicial. 

§  1025,  R.  8.,  Comp.  Stat.  1901,  p.  720,  2  F.  8.  A.  840, 
Rose's  Code,  §  1579.  "No  indictment  found  and  presented 
by  a  grand  jury  in  any  district  or  circuit  or  other  court 
of  the  United  States  shall  be  deemed  insufficient,  nor  shall 
the  trial,  judgment,  or  other  proceeding  thereon  be  affected 
by  reason  of  any  defect  or  imperfection  in  matter  of  form 
only,  which  shall  not  tend  to  the  prejudice  of  the  defendant." 


556       MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE      §  2127 

§  2125.  Judgment  Respondeat  Ouster  on  Demurrer  to  an 
Indictment. 

§  1026,  R.  S.,  C.omp.  Stat.  1901,  p.  720,  2  F.  S.  A.  343, 
Rose's  Code,  §  1580.  "In  every  case  in  any  court  of  the 
United  States,  where  a  demurrer  is  interposed  to  an  indict- 
ment, or  to  any  count  or  counts  thereof,  or  to  any  informa- 
tion, and  the  demurrer  is  overruled,  the  judgment  shall  be 
respondeat  ouster;  and  thereupon  a  trial  may  be  ordered 
at  the  same  term,  or  a  continuance  may  be  ordered,  as  jus- 
tice may  require." 

§  2126.  Arrest — Imprisonment — Bail — Removal  for  Trial 
— Offenders  against  the  United  States. 

§  1014,  R.  S.,  Comp.  Stat.  1901,  p.  716,  2  F.  S.  A.  321, 
Rose's  Code,  §  1537.  "For  any  crime  or  offense  against  the 
United  States,  the  offender  may,  by  any  justice  or  judge  of 
the  United  States,  or  by  any  commissioner  of  a  circuit  court 
to  take  bail,  or  by  any  chancellor,  judge  of  a  supreme  or 
superior  court,  chief  or  first  judge  of  common  pleas,  mayor 
of  a  city,  justice  of  the  peace,  or  other  magistrate,  of  any 
state  where  he  may  be  found,  and  agreeably  to  the  usual 
mode  of  process  against  offenders  in  such  state,  and  at  the 
expense  of  the  United  States,  be  arrested  and  imprisoned,  or 
bailed,  as  the  case  may  be,  for  trial  before  such  court  of 
the  United  States  as  by  law  has  cognizance  of  the  offense. 
Copies  of  the  process  shall  be  returned  as  speedily  as  may 
be  into  the  clerk's  office  of  such  court,  together  with  the 
recognizances  of  the  witnesses  for  their  appearance  to  testi- 
fy in  the  case.  And  where  any  offender  or  witness  is  com- 
mitted in  any  district  other  than  that  where  the  offense  is 
to  be  tried,  it  shall  be  the  duty  of  the  judge  of  the  district 
where  such  offender  or  witness  is  imprisoned  seasonably  to 
issue,  and  of  the  marshal  to  execute,  a  warrant  for  his  re- 
moval to  the  district  where  the  trial  is  to  be  had." 

§  2127.  Marshal  Making  Arrest  to  Take  Prisoner  to  Near- 
est Judicial  Officer  and  Return  before  Such  Officer  the  War- 
rant with  Certified  Copy  of  Complaint  Attached. 

Act  Aug.  18,  1894,  cJi.  301,  Comp.  Stat.  1901,  p.  717,  2 
F.  S.  A.  33J,,  Rose's  Code,  §  1538.  "Provided,  That  it 
shall  be  the  duty  of  the  marshal,  his  deputy,  or  other  officer, 
who  may  arrest  a  person  charged  with  any  crime  or  offense, 


§  2130  CRIMINAL  PROCEDURE  557 

to  take  the  defendant  before  the  nearest  circuit  court  com- 
missioner or  the  nearest  judicial  officer  having  jurisdiction 
under  existing  laws  for  a  rehearing,  commitment,  or  taking 
bail  for  trial,  and  the  officer  or  magistrate  issuing  the  warrant 
shall  attach  thereto  a  certified  copy  of  the  complaint,  and 
upon  the  arrest  of  the  accused,  the  return  of  the  warrant,  with 
a  copy  of  the  complaint  attached,  shall  confer  jurisdiction 
upon  such  officer  as  fully  as  if  the  complaint  had  originally 
been  made  before  hini,  and  no  mileage  shall  be  allowed  any 
officer  violating  the  provisions  hereof." 

§  2128.  Officers  Authorized  to  Hold  to  Security  of  the 
Peace  and  for  Good  Behavior. 

§  270,  Judicial  Code,™  36  Stat.  at  L.  1163,  Comp.  St. 
1911,  p.  237, 1912  Supp.  F.  8.  A.  v.  1,  p.  243.  "The  judges 
of  the  Supreme  Court  and  of  the  circuit  court  of  appeals 
and  district  courts,  United  States  commissioners,  and  the 
judges  and  other  magistrates  of  the  several  states  who  are 
or  may  be  authorized  by  law  to  make  arrests  for  offenses 
against  the  United  States,  shall  have  the  like  authority  to 
hold  to  security  of  the  peace  and  for  good  behavior,  in  cases 
arising  under  the  Constitution  and  laws  of  the  United  States, 
as  may  be  lawfully  exercised  by  any  judge  or  justice  of  the 
peace  of  the  respective  states,  in  cases  cognizable  before 
them." 

§  2129.  Bail  Admitted  in  Cases  Not  Capital. 

§  1015,  R.  S.,  Comp.  Stat.  1901,  p.  718,  1  F.  S.  A.  521, 
Rose's  Code,  §  1514-  "Bail  shall  be  admitted  upon  all 
arrests  in  criminal  cases  where  the  offense  is  not  punishable 
by  death;  and  in  such  cases  it  may  be  taken  by  any  of  the 
persons  authorized  by  the  preceding  section  mm  to  arrest  and 
imprison  offenders." 

§  2130.  Bail  Admitted  in  Capital  Cases  only  by  Court  or 
Judge. 

§  1016,  R.  8.,  Comp.  Stat.  1901,  p.  718,  1  F.  8.  A.  522, 
Rose's  Code,  §  1545.  "Bail  may  be  admitted  upon  all  arrests 
in  criminal  cases  where  the  punishment  may  be  death ;  but 

m  Drawn  from  §  727,  R.  S.,  Rose's  Code,  §  1593,  Comp.  St.  1901,  p.  485, 
4  F.  S.  A.  519,  which  section  is  repealed  by  §  297,  Judicial  Code.  In  general, 
Rice  v.  Ames,  180  U.  S.  371,  45  L.  ed.  577,  21  Sup.  Ct.  Rep.  406. 

mm  §  1014  R.  S.  quoted  in  §  2126  above. 


558 

in  such  cases  it  shall  be  taken  only  by  the  Supreme  Court  or 
a  circuit  court,  or  by  a  justice  of  the  Supreme  Court,  a  cir- 
cuit judge,  or  a  judge  of  a  district  court,  who  shall  exercise 
their  discretion  therein,  having  regard  to  the  nature  and 
circumstance  of  the  offense,  and  of  the  evidence,  and  to  the 
usages  of  law." 

§  2131.  Bail  in  Criminal  Cases  Removed  by  Writ  of  Error 
from  State  Court. 

§  1017,  R.  S.,  Comp.  Stat.  1901,  p.  718,  1  F.  S.  A.  522, 
Rose's  Code,  §  1546.  "When  a  writ  of  error  is  issued  for 
the  revision  of  the  judgment  of  a  state  court,  in  any  criminal 
proceeding  where  is  drawn  in  question  the  validity  of  a  stat- 
ute of,  or  an  authority  exercised  under,  the  United  States, 
or  where  any  title,  right,  privilege,  or  immunity  is  claimed 
under  the  Constitution,  or  any  statute  of,  or  commission  held 
or  authority  exercised  under,  the  United  States  the  defend- 
ant, if  charged  with  an  offense  that  is  bailable  by  the  laws  of 
such  state,  shall  not  be  released  from  custody  until  a  final 
judgment  upon  such  writ,  or  until  a  bond,  with  sufficient 
sureties,  in  a  reasonable  sum,  as  ordered  and  approved  by 
the  state  court,  is  given ;  and  if  the  offense  is  not  so  bailable, 
until  a  final  judgment  upon  the  writ  of  error." 

§  2132.  Bail— Surrender  of. 

§  1018,  R.  8.,  Comp.  Stat.  1901,  p.  719,  1  F.  S.  A.  522, 
Rose's  Code,  §  1549.  "Any  party  charged  with  a  criminal 
offense  and  admitted  to  bail  may,  in  vacation,  be  arrested  by 
his  bail,  and  delivered  to  the  marshal  or  his  deputy,  before 
any  judge  or  other  officer  having  power  to  commit  for  such 
offense;  and  at  the  request  of  such  bail,  the  judge  or  other 
officer  shall  recommit  the  party  so  arrested  to  the  custody 
of  the  marshal,  and  indorse  on  the  recognizance,  or  certified 
copy  thereof,  the  discharge  and  exoneretur  of  such  bail ;  and 
the  party  so  committed  shall  therefrom  be  held  in  custody 
until  discharged  by  due  course  of  law." 

§  2133.  New  Bail  as  Better  Security. 

§  1019,  R.  8.,  Comp.  Stat.  1901,  p.  719,  1  F.  S.  A.  523, 
Rose's  Code,  §  1550.  "When  proof  is  made  to  any  judge 
of  the  United  States,  or  other  magistrate  having  authority 
to  commit  on  criminal  charges  as  aforesaid,  that  a  person 


§    2136  CRIMINAL   PROCEDURE  559 

previously  admitted  to  bail  on  any  such  charge  is  about  to 
abscond,  and  that  his  bail  is  insufficient,  the  judge  or  magis- 
trate shall  require  such  person  to  give  better  security,  or, 
for  default  thereof,  cause  him  to  be  committed  to  prison; 
and  an  order  for  his  arrest  may  be  indorsed  on  the  former 
commitment,  or  a  new  warrant  therefor  may  be  issued  by 
such  judge  or  magistrate,  setting  forth  the  cause  thereof." 

§  2134.  Recognizance — Remittance  of — Forfeiture  of. 

§  1020,  R.  S.,  Comp.  Stat.  1901,  p.  719,  1  F.  S.  A.  523, 
Rose's  Code,  §  1551.  "When  any  recognizance  in  a  criminal 
cause,  taken  for,  or  in,  or  returnable  to,  any  court  of  the 
United  States,  is  forfeited  by  a  breach  of  the  condition  there- 
of, such  court  may,  in  its  discretion,  remit  the  whole  or  a 
part  of  the  penalty,  whenever  it  appears  to  the  court  that 
there  has  been  no  wilful  default  of  the  party,  and  that  a 
trial  can,  notwithstanding,  be  had  in  the  cause,  and  that 
public  justice  does  not  otherwise  require  the  same  penalty 
to  be  enforced." 

§  2135.  Copy   of  Writ — Jailer's  Authority   and   Original 
Returned  with  Officer's  Return. 

§  1028,  R.  S.,  10  Stat.  at  L.  162,  3,  Comp.  Stat.  1901, 
p.  721,  2  F.  S.  A.  335,  Roses  Code,  §  1582.  "Whenever  a 
prisoner  is  committed  to  a  sheriff  or  jailer  by  virtue  of  a  writ, 
warrant,  or  mittimus,  a  copy  thereof  shall  be  delivered  to 
such  sheriff  or  jailer,  as  his  authority  to  hold  the  prisoner, 
and  the  original  writ,  warrant,  or  mittimus  shall  be  returned 
to  the  proper  court  or  officer,  with  the  officer's  return  there- 
on." 

§  2136.  Writ  for  Removal  of  Prisoner  from  One  District 
to  Another. 

§  1029,  R.  S.,  10  Stat.  at  L.  162,  3,  Comp.  Stat.  1901, 
p.  721,  2  F.  8.  A.  335,  Rose's  Code,  §  1588.  "Only  one  writ 
or  warrant  is  necessary  to  remove  a  prisoner  from  one  district 
to  another.  One  copy  thereof  may  be  delivered  to  the  sheriff 
or  jailer  from  whose  custody  the  prisoner  is  taken,  and  an- 
other to  the  sheriff  or  jailer  to  whose  custody  he  is  committed, 
and  the  original  writ,  with  the  marshal's  return  thereon,  shall 
be  returned  to  the  clerk  of  the  district  to  which  he  is  re- 
moved." 


500        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2141 

§  2137.  One  Writ  Sufficient  Where  Several  Indictments 
against  Same  Person. 

§  1021,  R.  8.,  Comp.  Stat.  1901,  p.  721,  2  F.  8.  A.  334, 
Rose's  Code,  §  1581.  "When  two  or  more  charges  are  made, 
or  two  or  more  indictments  are  found  against  any  person, 
only  one  writ  or  warrant  shall  be  necessary  to  commit  him 
for  trial;  and  it  shall  be  sufficient  to  state  in  the  writ  the 
name  or  general  character  of  the  offenses,  or  to  refer  to  them 
only  in  very  general  terms." 

§  2138.  No  Writ  Necessary  to  Bring  into  Court  Person 
in  Custody. 

§  1030,  R.S.,10  Stat.  at  L.  169,  Comp.  Stat.  1901,  p.  721, 
2  F.  S.  A.  335,  Rose's  Code,  §  1584.  "^o  writ  is  necessary 
to  bring  into  court  any  prisoner  or  person  in  custody,  or  for 
remanding  him  from  the  court  into  custody;  but  the  same 
shall  be  done  on  the  order  of  the  court  or  district  attorney, 
for  which  no  fees  shall  be  charged  by  the  clerk  or  marshal." 

§  2139.  Duty  of  District  Attorney  to  Prosecute. 

Pt.  §  771,  R.  S.,  Comp.  Stat.  1901,  p.  601,4  F.  S.  A.  155, 
Rose's  Code,  §  524-  "It  shall  be  the  duty  of  every  district 
attorney  to  prosecute,  in  his  district,  all  delinquents  for 
crimes  and  offenses  cognizable  under  the  authority  of  the 
United  States.  .  .  ." 

'  '•/<"[&)  B  .etnifrlitfli  •!••<  . 

§  2140.  Standing  Mute— Plea  Not  Guilty. 

§  1032,  R.  S.,  Comp.  Stat.  1901,  p.  722,  2  F.  S.  A.  343, 
Rose's  Code,  §  1585.  "When  any  person  indicted  for  any 
offense  against  the  United  States,  whether  capital  or  other- 
wise, upon  his  arraignment  stands  mute,  or  refuses  to  plead 
or  answer  thereto,  it  shall  be  the  duty  of  the  court  to  enter 
the  plea  of  not  guilty  on  his  behalf,  in  the  same  manner  as 
if  he  had  pleaded  not  guilty  thereto.  And  when  the  party 
pleads  not  guilty,  or  such  plea  is  entered  as  aforesaid,  the 
cause  shall  be  deemed  at  issue,  and  shall,  without  further 
form  or  ceremony,  be  tried  by  a  jury." 

§  2141.  Indicted  of  Treason  or  Capital  Offense  Entitled 
to  Copy  of  Indictment  and  List  of  Jurors  and  Witnesses. 

§  1033,  R.  S.,  1  Stat.  at  L.  118,  Comp.  Stat.  1901,  p.  722, 
2  F.  S.  A.  344,  Rose's  Code,  §  1586.  "When  any  person  is 


§    2142  CRIMINAL   PROCEDURE  501 

indicted  of  treason,  a  copy  of  the  indictment  and  a  list  of  the 
jury,  and  of  the  witnesses  to  be  produced  on  the  trial  for  prov- 
ing the  indictment,  stating  the  place  of  abode  of  each  juror 
and  witness,  shall  be  delivered  to  him  at  least  three  days  be- 
fore he  is  tried  for  the  same.  When  any  person  is  indicted  of 
any  capital  offense,  such  copy  of  the  indictment  and  list  of  the 
jurors  and  witnesses  shall  be  delivered  to  him  at  least  two 
entire  days  before  the  trial." 

This  provision  is  not  directory  only,  but  mandatory  to  the  gov- 
ernment; and  its  purpose  is  to  inform  the  defendant  of  the  testi- 
mony he  will  have  to  meet  and  enable  him  to  prepare  his  defense. 
Being  enacted  for  his  benefit,  he  may  doubtless  waive  it,  if  he 
pleases ;  but  he  has  a  right  to  insist  upon  it,  and  if  he  seasonably 
does  so,  the  trial  cannot  lawfully  proceed  until  the  requirement 
has  been  complied  with.1  There  would  appear  to  be  a  negative 
pregnant  here,  and  it  has  accordingly  been  held  that  in  cases  not 
capital  the  prisoner  is  not  entitled  to  a  copy  of  the  indictment  at 
government  expense.2  Nor  is  he  entitled  to  a  list  of  witnesses  and 
jurors.3  But  in  cases  not  capital,  where  there  has  been  no  prelim- 
inary examination,  it  is  within  the  discretion  of  the  court  to  order 
a  list  of  the  witnesses  sworn  before  the  grand  jury  to  be  furnished 
the  accused.4  The  arraignment  is  to  be  regarded  as  the  commence- 
ment of  the  trial,  and  the  statutory  time  in  which  the  copy  of  the 
indictment  and  a  list  of  the  jury  are  to  be  delivered  to  him  must 
be  exclusive  of  the  day  of  delivery  and  the  day  of  arraignment.6 

' 

§  2142.  Persons  Indicted  for  Capital  Crimes  Entitled  to 
Counsel  and  to  Compel  Witnesses. 

§  1034,  R-  S.,  1  Stat.  at  L.  118,  Comp.  Stat.  1901,  p.  722, 
2  F.  8.  A.  344,  Roses  Code,  §  1586.  "Every  person  who  is 
indicted  of  treason  or  other  capital  crime,  shall  be  allowed 

1  Logan  v.  United  States,  144  U.  S.  263,  36  L.  ed.  429,  12  Sup.  Ct.  Rep.  617; 
Hickory  v.   United   States,   151   U.  S.   303,   38   L.  ed.   170,   14  Sup.   Ct.   Rep. 
334;   United  States  v.  Cornell,  2  Mason,  91,  Fed.  Cas.  No.  14,&68. 

2  United  States  v.  Van  Duzee,  140  U.  S.  169,  35  L.  ed.  399,  11  Sup.  Ct.  Rep. 
758;   Shelp  v.  United  States,  81  Fed.  094,  26  C.  C.  A.  570. 

3  United  States  v.  Van  Duzee,  140  U.  S.  169,  35  L.  ed.  399,   11   Sup.   Ct. 
Rep.   758. 

4  United  States  v.  Southmayd,  6  Biss.  321,  Fed.  Cas.  No.  16,361. 
6  United  States  v.  Dow,  Taney,  34,  Fed.  Cas.  No.  14,990. 

Montg.— 36. 


562        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2144: 

to  make  his  full  defense  by  counsel  learned  in  the  law ;  and 
the  court  before  which  he  is  tried,  or  some  judge  thereof,  shall 
immediately,  upon  his  request,  assign  to  him  such  counsel, 
not  exceeding  two  as  he  may  desire,  and  they  shall  have  free 
access  to  him  at  all  seasonable  hours.  He  shall  be  allowed,  in 
his  defense,  to  make  any  proof  that  he  can  produce  by  lawful 
witnesses,  and  shall  have  the  like  process  of  the  court  to 
compel  his  witnesses  to  appear  at  his  trial,  as  is  usually 
granted  to  compel  witnesses  to  appear  on  behalf  of  the  prose- 
cution." 

Pt.  6th  Amend.  U.  S.  Const.  "In  all  criminal  prosecu- 
tions the  accused  shall  enjoy  the  right  ...  to  be  informed 
of  the  nature  and  cause  of  the  accusation ;  to  be  confronted 
with  the  witnesses  against  him ;  to  have  compulsory  process 
for  obtaining  witnesses  in  his  favor,  and  to  have  the  assist- 
ance of  counsel  in  his  defense." 

§  2143.  Accused  Has  Right  to  Trial  by  Jury. 

Pt.  6th  Amend.  U.  8.  Const.  "In  all  criminal  prosecu- 
tions, the  accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial,  by  an  impartial  jury  of  the  state  and  district  wherein 
the  crime  shall  have  been  committed,  which  district  shall 
have  been  previously  ascertained  by  law,  .  .  ." 

The  provisions  relating  to  qualifications  and  exemptions,  etc., 
of  petit  jurors  are  about  the  same  as  for  grand  jurors  set  out  in 
the  preceding  sections ;  but  in  prosecutions  for  bigamy  or  polyg- 
amy there  are  special  grounds  of  challenge  set  out  in  the  follow- 
ing section.  The  subject  of  petit  juries  is  treated  in  §§  733-743 
inclusive,  supra.  Special  provisions  as  to  challenges  in  criminal 
cases  are  in  the  following  sections. 

§  2144.  Peremptory  Challenges — Criminal  Cases. 

§  287,  Judicial  Code,"  36  8 tat.  at  L.  1166,  Comp.  St. 
1911,  p.  24L  1912  Supp.  F.  8.  A.  v.  1,  p.  2J+8.  "When 
the  offense  charged  is  treason  or  a  capital  offense,  the  defend- 
ant shall  be  entitled  to  twenty  and  the  United  States  to  six 
peremptory  challenges.  On  the  trial  of  any  other  felony, 
the  defendant  shall  be  entitled  to  ten  and  the  United  States 

»  For  Annotation  of  this   §  287,  Judicial  Code,   see  footnote  *,   ante,   our 
§  743. 


§    2146  CRIMINAL   PROCEDURE  563 

to  six  peremptory  challenges;  and  in  all  other  cases,  civil 
and  criminal,  each  party  shall  be  entitled  to  three  peremptory 
challenges;  and  in  all  cases  where  there  are  several  defend- 
ants or  several  plaintiffs,  the  parties  on  each  side  shall  be 
deemed  a  single  party  for  the  purposes  of  all  challenges 
under  this  section.  All  challenges,  whether  to  the  array  or 
panel,  or  to  individual  jurors  for  cause  or  favor,  shall  be 
tried  by  the  court  without  the  aid  of  triers." 

§  2145.  Excessive  Peremptory  Challenges  in  Capital  Cases 
Disregarded. 

§  1031,  R.  S.,  Comp.  Stat.  1901,  p.  781,  4  F.  S.  A.  747, 
.  Rose's  Code,  §  1716.  "If,  in  the  trial  of  a  capital  offense, 
the  party  indicted  peremptorily  challenges  jurors  above  the 
number  allowed  him  by  law,  such  excess  of  challenges  shall 
be  disallowed  by  the  court,  and  the  cause  shall  proceed  for 
trial  in  the  same  manner  as  if  they  had  not  been  made." 

§  2146.  Challenges  in  Prosecutions  for  Bigamy  or  Polyg- 
amy. 

§  288,  Judicial  Code,0  36  Stat.  at  L.  1166,  Comp.  St. 
1911,  p.  242,  1912  8upp.  F.  S.  A.  v.  1,  p.  248.  "In  any 
prosecution  for  bigamy,  polygamy,  or  unlawful  cohabitation, 
under  any  statute  of  the  United  States,  it  shall  be  sufficient 
cause  of  challenge  to  any  person  drawn  or  summoned  as  a 
juryman  or  talesman — 

"First,  that  he  is  or  has  been  living  in  the  practice  of 
bigamy,  polygamy,  or  unlawful  cohabitation  with  more  than 
one  woman,  or  that  he  is  or  has  been  guilty  of  an  offense 
punishable  either  by  sections  one  or  three  of  an  Act  entitled, 
"An  Act  to  Amend  Section  fifty-three  hundred  and  fifty-two 
of  the  Revised  Statutes  of  the  United  States,  in  Eeference  to 
Bigamy,  and  for  Other  Purposes,"  approved  March  twenty- 
second,  eighteen  hundred  and  eighty-two,  or  by  section  fifty- 
three  hundred  and  fifty-two  of  the  Revised  Statutes  of  the 
United  States,  or  the  act  of  July  first,  eighteen  hundred  and 
sixty-two,  entitled,  "An  Act  to  Punish  and  Prevent  the 
Practice  of  Polygamy  in  the  Territories  of  the  United  States 

•  Re-enacting  §  5  of  Act  of  March  22,  1882,  ch.  47,  Rose's  Code,  §  1718,  Fos- 
ter's Fed.  Prac.  (4th  ed.)  p.  1398,  22  Stat.  at  L.  31,  Comp.  St.  1901,  p.  3634, 
4  F.  S.  A.  706.  In  general,  France  v.  Connor,  161  U.  S.  65,  40  L.  ed.  619,  16 
Sup.  Ct.  Rep.  497. 


564        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDTKK    §  2148 

and  Other  Places,  and  Disapproving  and  Annulling  Certain 
Acts  of  the  Legislative  Assembly  of  the  Territory  of 
Utah;"  or 

"Second,  that  he  believes  it  right  for  a  man  to  have  more 
than  one  living  and  nndivorced  wife  at  the  same  time,  or  to 
live  in  the  practice  of  cohabiting  with  more  than  one  woman. 

"Any  person  appearing  or  offered  as  a  juror  or  talesman, 
and  challenged  on  either  of  the  foregoing  grounds,  may  be 
questioned  on  his  oath  as  to  the  existence  of  any  such  cause 
of  challenge;  and  other  evidence  may  be  introduced  bearing 
upon  the  question  raised  by  such  challenge;  and  this  question 
shall  be  tried  by  the  court. 

"But  as  to  the  first  ground  of  challenge  before  mentioned, 
the  person  challenged  shall  not  be  bound  to  answer  if  he  shall 
say  upon  his  oath  that  he  declines  on  the  ground  that  his  an- 
swer may  tend  to  criminate  himself ;  and  if  he  shall  answer 
as  to  said  first  ground,  his  answer  shall  not  be  given  in 
evidence  in  any  criminal  •prosecution  against  him  for  any 
offense  above  named ;  but  if  he  declines  to  answer  on  any 
ground,  he  shall  be  rejected  as  incompetent." 

§  2147.  Trial  of  Criminal  Cases.  Provisions  as  to  evidence 
are  in  chapter  14,  and  as  to  witnesses  in  chapter  15. 

The  Federal  courts  follow  their  own  rules  and  decisions  re- 
specting the  trial  of  criminal  cases  and  matters  incidental  thereto. 

The  rules  of  the  district  court  in  the  various  districts  should  be 
consulted. 

§  2148.  Verdict  for  Less  Offense  than  Charged. 

§  1035,  R.  8.,  7  Stat.  at  L.  198,  Comp.  Stat.  1901,  p.  723, 
2  F.  8.  A.  352,  Rose's  Code,  §  1588.  "In  all  criminal  causes 
the  defendant  may  be  found  guilty  of  any  offense  the  commis- 
sion of  which  is  necessarily  included  in  that  with  which  he  is 
charged  in  the  indictment,  or  may  be  found  guilty  of  an  at- 
tempt to  commit  the  offense  so  charged:  Provided,  That 
such  attempt  be  itself  a  separate  offense." 

This  section  does  not  authorize  a  jury  to  find  the  defendant 
guilty  of  a  less  offense  than  the  one  charged,  unless  the  evidence 
justified  them  in  so  doing.  Congress  did  not  intend  to  invest 


§    2151  CRIMINAL   PROCEDURE  565 

juries  in  criminal  cases  with  power  arbitrarily  to  disregard  the 
evidence  and  the  principles  of  law  applicable  to  the  case  on  trial.1 

§  2149.  Verdict  against  One  or  More  Several  Joint  De- 
fendants. 

§  1036,  R.  S.,  Comp.  Stat.  1901,  p.  123,  2  F.  S.  A.  353, 
Rose's  Code,  §  1589.  "On  an  indictment  against  several, 
if  the  jury  cannot  agree  upon  a  verdict  as  to  all,  they  may 
Tender  a  verdict  as  to  those  in  regard  to  whom  they  do  agree, 
on  which  a  judgment  shall  be  entered  accordingly;  and  the 
cause  as  to  the  other  defendants  may  be  tried  by  another 
jury." 

§  2150.  Qualified  Verdict   in   Cases   of  Murder  in   First 
Degree  or  Rape. 

§  330,  Penal  Code,  1909  Supp.  F.  8.  A.  494.  "In  all 
cases  where  the  accused  is  found  guilty  of  the  crime  of 
murder  in  the  first  degree,  or  rape,  the  jury  may  qualify  their 
verdict  by  adding  thereto  'without  capital  punishment ;'  and 
whenever  the  jury  shall  return  a  verdict  qualified  as  afore- 
said the  person  convicted  shall  be  sentenced  to  imprisonment 
at  hard  labor  for  life." 

§  2151.  Execution  Postponed  in  Capital  Case  Carried  to 
Appellate  Court. 

§  1040,  R.  S.,  15  Slat,  at  L.  338,  Comp.  Stat.  1901,  p.  724, 
2  F.  8.  A.  354,  Roses  Code,  §  2017.  "Whenever  a  judgment 
of  death  is  rendered  in  any  court  of  the  United  States,  and 
the  case  is  carried  to  the  Supreme  Court  in  pursuance  of  law, 
the  court  rendering  such  judgment  shall,  by  its  order,  post- 
pone the  execution  thereof  from  time  to  time  and  from  term 
to  term,  until  the  mandate  of  the  Supreme  Court  in  the  case 
is  received  and  entered  upon  the  records  of  such  lower  court. 
In  case  of  affirmance  by  the  Supreme  Court,  the  court  render- 
ing the  original  judgment  shall  appoint  a  day  for  the  execu- 
tion thereof ;  and  in  case  of  reversal,  such  further  proceedings 
shall  be  had  in  the  lower  court  as  the  Supreme  Court  may 
direct." 

The  provision  above  quoted  does  not  seem  to  have  been  expressly 
repealed.     Section  238,  Judicial  Code,  providing  for  appeals  and 

iSparf  v.  United  States,  156  U.  S.  51,  39  L.  ed.  343,  15  Sup.  Ct.  Rep.  273. 


566        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2153 

writs  of  error  from  the  district  courts  to  the  Supreme  Court,  does 
not  contain  the  clause,  contained  in  the  former  law,  giving  ap- 
pellate review  in  criminal  cases.  Section  128,  Judicial  Code, 
now  vests  such  criminal  appellate  jurisdiction  in  the  circuit  court 
of  appeals.  If  the  provision  in  §  1040,  R.  S.,  above  quoted  does 
not  apply  to  the  circuit  court  of  appeals  by  reason  of  the  transfer 
of  the  Supreme  Court's  criminal  appellate  jurisdiction  to  it,  never- 
theless the  same  result,  the  postponing  of  the  execution,  would  be 
accomplished  by  the  supersedeas. 

§  2152.  Judgments  for  Fines — How  Collected. 

§  1041,  R.  8.,  Comp.  Stat.  1901,  p.  724,  3  F.  S.  A.  98, 
Rose's  Code,  §  1606.  "In  all  criminal  or  penal  causes  in 
which  judgment  or  sentence  has  been  or  shall  be  rendered, 
imposing  the  payment  of  a  fine  or  penalty,  whether  alone 
or  with  any  other  kind  of  punishment,  the  said  judgment,  so 
far  as  the  fine  or  penalty  is  concerned,  may  be  enforced  by 
execution  against  the  property  of  the  defendant  in  like  man- 
ner as  judgments  in  civil  cases  are  enforced :  Provided,  That 
where  the  judgment  directs  that  the  defendant  shall  be  im- 
prisoned until  the  fine  or  penalty  imposed  is  paid,  the  issue 
of  execution  on  the  judgment  shall  not  operate  to  discharge 
the  defendant  from  imprisonment  until  the  amount  of  the 
judgment  is  collected  or  otherwise  paid." 

§  2153.  Discharge  of  Indigent   Convicts  Imprisoned  for 
Fines. 

§  1042,  R.  8.,  Cvrnp.  Stat.  1901,  p.  724,  3  F.  S.  A.  99, 
Rose's  Code,  §  1607.  "When  a  poor  convict,  sentenced  by 
any  court  of  the  United  States  to  pay  a  fine,  or  fine  and 
cost,  whether  with  or  without  imprisonment,  has  been  con- 
fined in  prison  thirty  days,  solely  for  the  nonpayment  of  such 
fine,  or  fine  and  cost,  he  may  make  application  in  writing  to 
any  commissioner  of  the  United  States  court  in  the  district 
where  he  is  imprisoned,  setting  forth  his  inability  to  pay  such 
fine,  or  fine  and  cost,  and  after  notice  to  the  district  attorney 
of  the  United  States,  who  may  appear,  offer  evidence,  and  be 
heard,  the  commissioner  shall  proceed  to  hear  and  determine 
the  matter;  and  if  on  examination  it  shall  appear  to  him  that 
such  convict  is  unable  to  pay  such  fine,  or  fine  and  cost,  and 
that  he  has  not  any  property  exceeding  twenty  dollars  in 


§    2154  CRIMINAL   PROCEDURE  507 

value,  except  such  as  is  by  law  exempt  from  being  taken  on 
execution  for  debt,  the  commissioner  shall  administer  to  him 
the  following  oath :  'I  do  solemnly  swear  that  I  have  not  any 
property,  real  or  personal,  to  the  amount  of  twenty  dollars, 
except  such  as  is  by  law  exempt  from  being  taken  on  civil 
precept  for  debt  by  the  laws  of  [state  where. oath  is  admin- 
istered] ;  and  that  I  have  no  property  in  any  way  conveyed 
or  concealed,  or,  in  any  way  disposed  of,  for  my  future  use  or 
benefit.  So  help  me  God.'  And  thereupon  such  convict  shall 
be  discharged,  the  commissioner  giving  to  the  jailer  or 
keeper  of  the  jail  a  certificate  setting  forth  the  facts." 

§  5296,  R.  8.,  Comp.  St.  1901,  p.  3608,  3  F.  8.  A.  106. 
"When  a  poor  convict,  sentenced  by  any  court  of  the  United 
States  to  be  imprisoned  and  pay  a  fine,  or  fine  and  cost, 
or  to  pay  a  fine,  or  fine  and  costs,  has  been  confined  in  prison 
thirty  days,  solely  for  the  nonpayment  of  such  fine,  or  fine 
and  costs,  such  convict  may  make  application  in  writing 
to  any  commissioner  of  the  United  States  court  in  the 
district  where  he  is  imprisoned,  setting  forth  his  inability  to 
pay  such  fine,  or  fine  and  costs,  and  after  notice  to  the 
district  attorney  of  the  United  States,  who  may  appear,  offer 
evidence,  and  be  heard,  the  commissioner  shall  proceed  to 
hear  and  determine  the  matter.  If  on  examination  it  shall 
appear  to  him  that  such  convict  is  unable  to  pay  such  fine, 
or  fine  and  costs,  and  that  he  has  not  any  property  exceeding 
twenty  dollars  in  value,  except  such  as  is  by  law  exempt 
from  being  taken  on  execution  for  debt,  the  commissioner 
shall  administer  to  him  the  following  oath:  'I  do  solemnly 
swear  that  I  have  not  any  property,  real  or  personal,  to  the 
amount  of  twenty  dollars,  except  such  as  is  by  law  exempt 
from  being  taken  on  civil  process  for  debt  by  the  laws  of 
[naming  the  state  where  oath  is  administered],  and  that  I 
have  no  property  in  any  way  conveyed  or  concealed,  or  in  any 
way  disposed  of,  for  my  future  use  or  benefit.  So  help  me 
God.'  Upon  taking  such  oath,  such  convict  shall  be  dis- 
charged; and  the  commissioner  shall  give  to  the  keeper  of 
the  jail  a  certificate  setting  forth  the  facts." 

§  2154.  Confinement  in  State  Jail  or  Penitentiary  When 
Use  of  so  Allowed  by  State  Law. 

§  554&,  R.  8.,  Comp.  8tat.  1901,  p.  3721,  6  F.  8.  A.  37, 
Rose's  Code,  §  1616.  "In  every  case  where  any  criminal 


568        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2155 

convicted  of  any  offense  against  the  United  States  is  sen- 
tenced to  imprisonment  and  confinement  to  hard  labor,  it 
shall  be  lawful  for  the  court  by  which  the  sentence  is  passed 
to  order  the  same  to  be  executed  in  any  state  jail  or  peni- 
tentiary within  the  district  or  state  where  such  court  is  held, 
the  use  of  which  jail  or  penitentiary  is  allowed  by  the  legis- 
lature of  the  state  for  that  purpose." 

§  2155.  Where  No  Penitentiary  or  Jail  Suitable  or  Avail- 
able, Attorney  General  May  Designate  in  a  Convenient  State 
or  Territory — Transportation  of  Prisoners — Change  of  Place 
to  Preserve  Health  or  Custody  of  Prisoner  or  Because  of 
His  Improper  or  Cruel  Treatment. 

§  5546 f  R.  S.,  31  Stat.  at  L.  1450,  Comp.  St.  1901,  p.  W2S, 
6  F.  S.  A.  41,  Rose's  Code,  §  1620.  "All  persons  who  have 
been,  or  who  may  hereafter  be,  convicted  of  crime  by  any 
court  of  the  United  States,  including  consular  courts,  whose 
punishment  is  imprisonment  in  a  district  or  territory  or 
country  where,  at  the  time  of  conviction  or  at  any  time 
during  the  term  of  imprisonments,  there  may  be  no  peni- 
tentiary or  jail  suitable  for  the  confinement  of  convicts,  or 
available  therefor,  shall  be  confined  during  the  term  for 
which  they  have  been  or  may  be  sentenced,  or  during  the 
residue  of  said  term,  in  some  suitable  jail  or  penitentiary 
in  a  convenient  state  or  territory,  to  be  designated  by  the 
Attorney  General,  and  shall  be  transported  and  delivered 
to  the  warden  or  keeper  of  such  jail  or  penitentiary  by  the 
marshal  of  the  district  or  territory  where  the  conviction  has 
occurred;  and  in  case  of  convictions  by  a  consular  court  the 
transportation  shall  be  by  some  properly  qualified  agent  or 
agents  designated  by  the  Department  of  State,  the  reasonable 
actual  expense  of  transportation,  necessary  subsistence,  and 
hire  and  transportation  of  guards  and  agent  or  agents  to  be  de- 
frayed from  the  appropriation  for  bringing  home  criminals ; 
and  if  the  conviction  be  had  in  the  District  of  Columbia, 
the  transportation  and  delivery  shall  be  by  the  warden  of  the 
jail  of  that  District,  the  reasonable  actual  expense  of  trans- 
portation, necessary  subsistence,  and  hire  and  transporta- 
tion of  guards  and  the  marshal,  or  the  warden  of  the  jail 
in  the  District  of  Columbia  only,  to  be  paid  by  the  Attorney 
General  out  of  the  judiciary  fund.  But  if,  in  the  opinion  of 
the  Attorney  General,  the  expense  of  transportation  from 
any  state,  territory,  or  the  District  of  Columbia  in  which 


§  2157  CRIMINAL  PROCEDURE  569 

there  is  no  penitentiary  will  exceed  the  cost  of  maintaining 
them  in  jail  in  the  state,  territory,  or  the  District  of  Colum- 
bia during  the  period  of  their  sentence,  then  it  shall  be  law- 
ful so  to  confine  them  therein  for  the  period  designated  in 
their  respective  sentences.  And  the  place  of  imprisonment 
may  be  changed  in  any  case  when,  in  the  opinion  of  the  At- 
torney General,  it  is  necessary  for  the  preservation  of  the 
health  of  the  prisoner,  or  when,  in  his  opinion,  the  place  of 
confinement  is  not  sufficient  to  secure  the  custody  of  the 
prisoner,  or  because  of  cruel  and  improper  treatment:  Pro- 
vided, however,  That  no  change  shall  be  made  in  the  case 
of  any  prisoner  on  the  ground  of  the  unhealthiness  of  the 
prisoner  or  because  of  his  treatment,  after  his  conviction 
and  during  his  term  of  imprisonment,  unless  such  change 
shall  be  applied  for  by  such  prisoner,  or  some  one  in  his 
behalf." 

§  2156.  Transportation  of  Criminals  to  Places  of  Imprison- 
ment by  Marshal. 

§  5,  Act  March  3,  1891,  ch.  529,  26  Stat.  at  L.  839,  Comp. 
Stat.  1901,  p.  3126,  6  F.  8.  A.  25,  Rose's  Code,  §  1610. 
"That  the  transportation  of  all  United  States  prisoners  con- 
victed of  crimes  against  the  laws  of  the  United  States  in  any 
state,  district,  or  territory,  and  sentenced  to  terms  of  im- 
prisonment in  a  penitentiary,  and  their  delivery  to  the  super- 
intendent, warden,  or  keeper  of  such  United  States  prisons, 
shall  be  by  the  marshal  of  the  district  or  territory  where  such 
conviction  may  occur,  after  the  erection  and  completion  of 
said  prisons.  That  the  actual  expenses  of  such  marshal,  in- 
cluding transportation  and  subsistence,  hire,  transportation, 
and  subsistence  of  guards,  and  the  transportation  and  sub- 
sistence of  the  convict  or  convicts,  be  paid,  on  the  approval 
of  the  Attorney  General,  out  of  the  judiciary  fund." 

§  2157.  Confinement  of  Juvenile  Offenders  under  Sixteen 
in  House  of  Refuge. 

§  7,  Act  March  3,  1891,  ch.  529,  26  Stat.  at  L.  840,  Comp. 
St.  1901,  p.  3727,  6  F.  S.  A.  26.  "That  this  act  shall  not 
apply  to  minors  who,  in  the  judgment  of  the  judges  presiding 
over  United  States  courts,  should  be  committed  to  reforma- 
tory institutions.  And  provided,  That  nothing  in  this  act 
shall  be  construed  as  prohibiting  the  courts  of  the  United 
States  from  sentencing  to  or  confining  prisoners,  either  civil 


570        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2159 

or  military,  in  the  United  States  military  prison  at  Fort 
Leavenworth,  Kansas." 

§  5549,  R.  S.,  17  Stat.  at  L.  35,  Comp.  Stat.  1901,  p.  8725, 
6  F.  S.  A.  46,  Rose's  Code,  §  1623.  "Juvenile  offenders 
against  the  laws  of  the  United  States,  being  under  the  age  of 
sixteen  years,  and  who  may  hereafter  be  convicted  of  crime, 
the  punishment  whereof  is  imprisonment,  shall  be  confined 
during  the  term  of  sentence  in  some  house  of  refuge  to  be  des- 
ignated by  the  Attorney  General,  and  shall  be  transported  and 
delivered  to  the  warden  or  keeper  of  such  house  of  refuge  by 
the  marshal  of  the  district  where  such  conviction  has  oc- 
curred ;  or  if  such  conviction  be  had  in  the  District  of  Colum- 
bia, then  the  transportation  and  delivery  shall  be  by  the  war- 
den of  the  jail  of  that  district,  and  the  reasonable  actual  ex- 
pense of  the  transportation,  necessary  subsistence,  and  hire, 
and  transportation  of  assistants  and  the  marshal  or  warden, 
only,  shall  be  paid  by  the  Attorney  General,  out  of  the  judi- 
ciary fund." 

§  2158.  Confinement  of  Juvenile  Offenders  under  Twenty 
Separate  from  Prisoners  over  Twenty. 

§  9,  Act  March  3, 1891,  ch.  529,  26  Stat.  at  L.  840,  Comp. 
Stat.  1901,  p.  3728,  6  F.  S.  A.  26,  Rose's  Code,  §  1630. 
That  the  Attorney  General  shall  be  authorized  to  designate 
to  which  of  said  prisons  persons  convicted  in  such  states  or 
territories  shall  be  carried  for  confinement:  Provided,  That 
in  the  construction  of  the  prison  buildings  provided  for  in  this 
act  there  shall  be  such  arrangement  of  cells  and  yard  space  as 
that  prisoners  under  twenty  years  of  age  shall  not  be  in  any 
way  associated  with  prisoners  above  that  age,  and  the  man- 
agement of  the  class  under  twenty  years  of  age  shall  be  as 
far  as  possible  reformatory." 

.>r.raHO  afi/:jy,vl  to  :?afim:?nfJn<v3    V? 

§  2159.  Mitigation  or  Remission  of  Fine,  etc.,  by  Secre- 
tary of  Treasury  upon  Summary  Investigation  by  District 
Judge. 

§  5292,  R.  S.,  Comp.  St.  1901,  p.  3604,  S  F.  8.  A.  101. 
"Whenever  any  person  who  shall  have  incurred  any  fine, 
penalty,  or  forfeiture,  or  disability,  or  may  be  interested  in 
any  vessel  or  merchandise  which  has  become  subject  to  any 
seizure,  forfeiture,  or  disability  by  authority  of  any  pro- 


§  2160  CRIMINAL  PROCEDURE  571 

visions  of  law  for  imposing  or  collecting  any  duties  or  taxes, 
or  relating  to  registering,  recording,  enrolling,  or  licensing 
vessels,  and  for  regulating  the  same,  or  providing  for  the 
suppression  of  insurrections  or  unlawful  combinations  against 
the  United  States,  shall  prefer  his  petition  to  the  judge 
of  the  district  in  which  such  fine,  penalty,  or  forfeiture, 
or  disability  has  accrued,  truly  and  particularly  setting 
forth  the  circumstances  of  his  case,  and  shall  pray  that  the 
same  may  be  mitigated  or  remitted,  the  judge  shall  inquire, 
in  a  summary  manner,  into  the  circumstances  of  the  case; 
first  causing  reasonable  notice  to  be  given  to  the  person 
claiming  such  fine,  penalty,  or  forfeiture,  and  to  the  attorney 
of  the  United  States  for  such  district,  that  each  may  have  an 
opportunity  of  showing  cause  against  the  mitigation  or  re- 
mission thereof;  and  shall  cause  the  facts  appearing  upon 
such  inquiry  to  be  stated  and  annexed  to  the  petition,  and 
direct  their  transmission  to  the  Secretary  of  the  Treasury. 
The  Secretary  shall  thereupon  have  power  to  mitigate  or 
remit  such  fine,  forfeiture,  or  penalty,  or  remove  such  dis- 
ability, or  any  part  thereof,  if,  in  his  opinion,  the  same  was 
incurred  without  wilful  negligence,  or  any  intention  of  fraud 
in  the  person  incurring  the  same;  and  to  direct  the  prosecu- 
tion, if  any  has  been  instituted  for  the  recovery  thereof,  to 
cease  and  be  discontinued,  upon  such  terms  or  conditions  as 
he  may  deem  reasonable  and  just." 

§  2160.  Same — Rules  and  Mode  of  Proceeding  May  Be 
Prescribed  by  Secretary  of  Treasury. 

§  5293,  R.  8.,  Comp.  Stat.  1901,  p.  3605,  3  F.  8.  A.  103, 
Rose's  Code,  §  11+18.  "The  Secretary  of  the  Treasury  is 
authorized  to  prescribe  such  rules  and  modes  of  proceeding 
to  ascertain  the  facts  upon  which  an  application  for  remis- 
sion of  a  fine,  penalty,  or  forfeiture  is  founded,  as  he  deems 
proper,  and,  upon  ascertaining  them,  to  remit  the  fine, 
penalty,  or  forfeiture,  if  in  his  opinion  it  was  incurred 
without  wilful  negligence  or  fraud,  in  either  of  the  following 
cases : 

"First  If  the  fine,  penalty,  or  forfeiture  was  imposed 
under  authority  of  any  revenue  law,  and  the  amount  does 
not  exceed  one  thousand  dollars. 

"Second.  Where  the  case  occurred  within  either  of  the 
collection  districts  in  the  states  of  California  or  Oregon. 

"Third.     If  the  fine,  penalty,  or  forfeiture  was  imposed 


572        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2162 

under  authority  of  any  provisions  of  law  relating  to  the 
importation  of  merchandise  from  foreign  contiguous  terri- 
tory, or  relating  to  manifests  for  vessels  enrolled  or  licensed 
to  carry  on  the  coasting  trade  on  the  northern,  northeastern, 
and  northwestern  frontiers. 

"Fourth.  If  the  fine,  penalty,  or  forfeiture  was  imposed 
by  authority  of  any  provisions  of  law  for  levying  or  collecting 
any  duties  or  taxes,  or  relating  to  registering,  recording,  en- 
rolling, or  licensing  vessels,  and  the  case  arose  within  the 
collection  district  of  Alaska,  or  was  imposed  by  virtue  of  any 
provisions  of  law  relating  to  fur  seals  upon  the  islands  of 
Saint  Paul  and  Saint  George." 

§  2161.  Same — Penalty  of  Imprisonment  or  Removal  from 
Office  Excepted — Preservation  of  Informer's  Right  to  Share 
of  Fine,  etc. 

§  5294,  R-  S.,  Comp.  St.  1901,  p.  3601,  3  F.  8.  A.  104. 
"The  Secretary  of  the  Treasury  may,  upon  application 
therefor,  remit  or  mitigate  any  fine,  penalty,  or  forfeiture 
provided  for  in  laws  relating  to  vessels,  or  discontinue  any 
prosecution  to  recover  penalties  or  relating  to  forfeitures  de- 
nounced in  such  laws,  excepting  the  penalty  of  imprison- 
ment or  of  removal  from  office,  upon  such  terms  as  he,  in  his 
discretion,  shall  think  proper ;  and  all  rights  grantedi  to  in- 
formers by  such  laws  shall  be  held  subject  to  the  Secretary's 
powers  of  remission,  except  in  cases  where  the  claims  of  any 
informer  to  the  share  of  any  penalty  shall  have  been  deter- 
mined by  a  court  of  competent  jurisdiction  prior  to  the  ap- 
plication for  the- remission  of  the  penalty  or  forfeiture;  and 
the  Secretary  shall  have  authority  to  ascertain  the  facts 
upon  all  such  applications  in  such  manner  and  under  such 
regulations  as  he  may  deem  proper." 

§  2162.  Execution  of  Death  Penalty. 

§  323,  Penal  Code,  1909  Supp.  F.  8.  A.  493.  "The  man- 
ner of  inflicting  the  punishment  by  death  shall  be  by  hang- 
ing." 

This  section  supersedes  without  change  §  5325,  R.  S.,  Comp. 
St.  1901,  p.  3620,  2  F.  S.  A.  354. 


§    2166  CRIMINAL   PROCEDURE  573 

§  2163.  Death  Penalty  Abolished  except  in  Certain  Cases. 

§  2,  Act  Jan.  15,  1897,  ch.  29,  29  Stat.  at  L.  487,  Comp. 
St.  1901,  p.  3621,  2F.  8.  A.  357.  "That  the  punishment  of 
death  prescribed  for  any  offense  specified  by  the  statutes  of 
the  United  States,  except  in  section  fifty-three  hundred  and 
thirty-two,  thirteen  hundred  and  forty-two,  sixteen  hundred 
and  twenty-four,  fifty-three  hundred  and  thirty-nine,  and 
fifty-three  hundred  and  forty-five,  Revised  Statutes,  is  hereby 
abolished,  and  all  laws  and  parts  of  laws  inconsistent  with 
this  act  are  hereby  repealed." 

§  2164.  Life  Imprisonment  Substituted  for  Death  Penalty 
when  Lesser  Penalty  in  Court's  Discretion. 

§  2,  Act  Jan,  15,  1897,  ch.  29,  29  Stat.  at  L.  487,  Comp. 
St.  1901,  p.  3620,  2  F.  S.  A.  357.  "That  except  offenses 
mentioned  in  sections  fifty-three  hundred  and  thirty-two, 
thirteen  hundred  and  forty-two,  sixteen  hundred  and  twenty- 
four,  fifty-three  hundred  and  thirty-nine,  and  fifty-three  hun- 
dred and  forty-five,  Revised  Statutes,  when  a  person  is  con- 
victed of  any  offense  to  which  the  punishment  of  death  is  now 
specifically  affixed  by  the  laws  of  the  United  States,  he  shall 
be  sentenced  to  imprisonment  at  hard  labor  for  life,  and  when 
any  person  is  convicted  of  an  offense  to  which  the  punishment 
of  death,  or  a  lesser  punishment,  in  the  discretion  of  the  court, 
is  affixed,  the  maximum  punishment  shall  be  imprisonment 
at  hard  labor  for  life." 

§  2165.  No  Corruption  of  Blood  or  Forfeiture  of  Estate. 

§  324,  P final  Code,  1909  Supp.  F.  S.  A.  493.  "No  con- 
viction shall  work  corruption  of  blood  or  forfeiture  of  es- 
tate." 

This  section  superse4es  without  change  §  5326,  R.  S.,  Comp. 
St.  1901,  p.  3620,  2  F.  S.  A.  354. 

§  2166.  Whipping  and   Pillory  Abolished. 

§  325,  Penal  Code,  '1909  Supp.  F.  S.  A.  493.  "The  pun- 
ishment of  whipping  or  standing  in  the  pillory  shall  not  be 
inflicted." 


574        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2168 

This  section  supersedes  without  change  §  5327,  R.  S.,  Comp. 
St.  1901,  p.  3622,  2  F.  S.  A.  354. 

§  2167.  Pardoning  Power  of  the  President. 

§  327,  Penal  Code,  1909  Supp.  F.  S.  A.  493.  "When- 
ever, by  the  judgment  of  any  court  or  judicial  officer  of  the 
United  States,  in  any  criminal  proceeding,  any  person  is 
sentenced  to  two  kinds  of  punishment,  the  one  pecuniary  and 
the  other  corporal,  the  president  shall  have  full  discretionary 
power  to  pardon  or  remit,  in  whole  or  in  part,  either  one  of 
the  two  kinds,  without  in  any  manner  impairing  the  legal 
validity  of  the  other  kind,  or  any  portion  of  either  kind,  not 
pardoned  or  remitted." 

This  section  supersedes  §  5330,  R.  S.,  Comp.  St.  1901,  p.  3622, 
2  F.  S.  A.  355. 

§  2168.  Parole  of  Prisoners. 

Act  January  23,  1913,  ch.  9,  37  Stat.  at  L.  650.  "That 
every  prisoner  who  has  been  or  may  hereafter  be  convicted 
of  any  offense  against  the  United  States  and  is  confined  in 
execution  of  the  judgment  of  such  conviction  in  any  United 
States  penitentiary  or  prison,  for  a  definite  term  or  terms  of 
over  one  year,  or  for  the  term  of  his  natural  life,  whose  record 
of  conduct  shows  that  he  has  observed  the  rules  of  such  insti- 
tution, and  who,  if  sentenced  for  a  definite  term,  has  served 
one  third  of  the  total  of  such  term  or  terms  for  which  he  was 
sentenced,  or,  if  sentenced  for  the  term  of  his  natural  life, 
has  served  not  less  than  fifteen  years,  may  be  released  on 
parole  as  hereinafter  provided." 


CHAPTER  43. 

EXTRADITION. 


Sec. 

2180.  When  and  by  Whom  Warrant  may  Issue  for  Arrest  of  Fugitive  from 

Justice  from  a  Foreign  Country. 

2181.  Person  Held  for  Extradition   only   on   Evidence  Establishing  Probable 

Cause. 

2182.  No  Extradition  for  Political  Oft'ense. 

2183.  Extradition  to  Foreign  Country  or  Territory  Occupied  or  under  Control 

of  United  States  of  Persons  Committing  Certain  Offenses. 

2184.  Hearing — Certification   of   Testimony   to   Secretary   of   State — Warrant 

for  Committal  Pending  Surrender. 

2185.  Hearing  to  Be  Public  on  Land. 

2186.  Witnesses  for  Indigent  Prisoners. 

2187.  Evidence  on  the  Hearing. 

2188.  Surrender  of  Person  by  Secretary  of  State  for  a  Fair  and  Impartial 

Trial. 

2189.  Retaking  of  Escaped  Person  Held  for  Extradition. 

2190.  Time  Allowed  for  Extradition  Two  Months  after  Commitment. 

2191.  Extradition  Provisions  Continue  during  Existence  of  Treaty. 

2192.  Transportation    and    Protection    of    Person    Extradited    to    the    United 

States. 

2193.  Same — Powers  of  Agent  Receiving  Such  Persons  Extradited  from  For- 

eign Country. 

2194.  Same — Penalty  for  Opposing  Agent  or  Attempting  Rescue. 

2195.  Interstate  Extradition. 

2196.  Penalty  for  Resisting  Agent  or  Attempting  Rescue,  Interstate  Extra- 

dition. 

2197.  Arrest  of  Deserting  Seaman  from  Foreign  Vessel. 

§  2180.  When  and   by   Whom  Warrant  may   Issue   for 
Arrest  of  Fugitive  from  Justice  from  a  Foreign  Country. 
First  PL  §  5270,  R.  8.,  Comp.  Stat.  1901,  p.  3591,  3 
F.  8.  A.  68,  Rose's  Code,  §  1642.     "Whenever  there  is  a 
treaty   or   convention  for   extradition  between  the  govern- 
ment of  the  United  States  and  any  foreign  government,  any 
justice  of  the  Supreme  Court,  circuit  judge,  district  judge, 

575 


576        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2183 

commissioner,  authorized  so  to  do  by  any  of  the  courts  of 
the  United  States,  or  judge  of  a  court  of  record  of  general 
jurisdiction  of  any  state,  may,  upon  complaint  made  under 
oath,  charging  any  person  found  within  the  limits  of  any 
state,  district,  or  territory,  with  having  committed  within 
the  jurisdiction  of  any  such  foreign  government  any  of  the 
crimes  provided  for  by  such  treaty  or  convention,  issue 
his  warrant  for  the  apprehension  of  the  person  so  charged, 
that  he  may  be  brought  before  such  justice,  judge,  or  com- 
missioner, to  the  end  that  the  evidence  of  criminality  may  be 
heard  and  considered.  .  ." 


§  2181.  Person  Held  for  Extradition  only  on  Evidence 
Establishing  Probable  Cause. 

Ft.  §  5270,  R.  8.,  Comp.  Stat.  1901,  p.  8591,  3  F.  8.  A. 
68,  Rose's  Code,  §  1642.  ".  .  .  Provided  further,  That 
such  proceedings  shall  be  had  before  a  judge  of  the  courts 
of  the  United  States  only,  who  shall  hold  such  person  on 
evidence  establishing  probable  cause  that  he  is  guilty  of  the 
offense  charged:  .  .  ." 

§  2182.  No  Extradition  for  Political  Offense. 

PL  §  5270,  R.  S.,  Comp.  Stat.  1901,  p.  3591^,  3  F.  S.  A. 
68,  Rose's  Code,  §  164®-  ".  '  .  .  And  provided  further, 
That  no  return  or  surrender  shall  be  made  of  any  person 
charged  with  the  commission  of  any  offense  of  a  political 
nature.  .  .  ." 

§  2183.  Extradition  to  Foreign  Country  or  Territory  Oc- 
cupied or  under  Control  of  United  States  of  Persons  Commit- 
ting Certain  Offenses. 

Pt.  §  5270,  R.  S.,  Comp.  Stat  1901,  p.  3591,  3  F.  S.  A. 
68,  Rose's  Code,  §  1642.  ".  .  .  Provided,  That  whenever 
any  foreign  country  or  territory,  or  any  part  thereof,  is 
occupied  by  or  under  the  control  of  the  United  States,  any 
person  who  shall  violate,  or  who  has  violated,  the  criminal 
laws  in  force  therein,  by  the  commission  of  any  of  the  follow- 
ing offenses,  namely:  Murder  and  assault  with  intent  to 
commit  murder;  counterfeiting  or  altering  money,  or  utter- 
ing or  bringing  into  circulation  counterfeit  or  altered  money ; 
counterfeiting  certificates  or  coupons  of  public  indebtedness, 


§    2184  EXTRADITION  577 

bank  notes,  or  other  instruments  of  public  credit,  and  the 
utterance  or  circulation  of  the  same;  forgery  or  altering 
and  uttering  what  is  forged  or  altered;  embezzlement  or 
criminal  malversation  of  the  public  funds,  committed  by 
public  officers,  employees,  or  depositaries ;  larceny  or  em- 
bezzlement of  an  amount  not  less  than  one  hundred  dollars 
in  v^lue;  robbery;  burglary,  defined  to  be  the  breaking  and 
entering  by  night  time  into  the  house  of  another  person  with 
intent  to  commit  a  felony  therein;  and  the  act  of  breaking 
and  entering  the  house  or  building  of  another,  whether  in  the 
day  or  nighttime,  with  the  intent  to  commit  a  felony  therein ; 
the  act  of  entering,  or  of  breaking  and  entering,  the  offices 
of  the  government  and  public  authorities,  or  the  offices  of 
banks,  banking  houses,  savings  banks,  trust  companies,  in- 
surance or  other  companies,  with  the  intent  to  commit  a 
felony  therein;  perjury  or  the  subornation  of  perjury;  rape, 
arson ;  piracy  by  the  law  of  nations ;  murder,  assault  with 
intent  to  kill,  and  manslaughter,  committed  on  the  high  seas, 
on  board  a  ship  owned  by  or  in  control  of  citizens  or  residents 
of  such  foreign  country  or  territory,  and  not  under  the  flag 
of  the  United  States  or  of  some  other  government ;  malicious 
destruction  of  or  attempt  to  destroy  railways,  trams,  vessels, 
bridges,  dwellings,  public  edifices,  or  other  buildings,  when 
the  act  endangers  human  life,  and  who  shall  depart  or  flee, 
or  who  has  departed  or  fled,  from  justice  therein  to  the 
United  States,  any  territory  thereof  or  to  the  District  of 
Columbia, — shall,  when  found  therein,  be  liable  to  arrest 
and  detention  by  the  authorities  of  the  United  States,  and 
on  the  written  request  or  requisition  of  the  military  governor 
or  other  chief  executive  officer  in  control  of  such  foreign 
country  or  territory  shall  be  returned  and  surrendered,  as 
hereinafter  provided,  to  such  authorities  for  trial  under  the 
laws  in  force  in  the  place  where  such  offense  was  committed- 
All  the  provisions  of  sections  fifty-two  hundred  and  seventy 
to-  fifty-two  hundred  and  seventy-seven  of  this  title,  so  far 
as  applicable,  shall  govern  proceedings  authorized  by  this 
proviso:  .  .  ." 

§  2184.  Hearing — Certification    of   Testimony   to    Secre- 
tary of  State — Warrant  for  Commitment  Pending  Surrender. 

Pt.  §  5210,  R.  S.t  Cornp.  8 fat.  1901,  p.  3591,  3  F.  8.  A. 
68,  Rose's  Code,  §  1642.    '".     .     .  If,  on  such  hearing,  he 

deems  the  evidence  sufficient  to  sustain  the  charge  under  the 
Montg. — 37. 


578        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2187 

provisions  of  the  proper  treaty  or  convention,  he  shall  certify 
the  same,  together  with  a  copy  of  all  the  testimony  taken  be- 
fore him,  to  the  Secretary  of  State,  that  a  warrant  -may  issue 
upon  the  requisition  of  the  proper  authorities  of  such  foreign 
government,  for  the  surrender  of  such  person,  according  to 
the  stipulations  of  the  treaty  or  convention;  and  he  shall 
issue  his  warrant  for  the  commitment  of  the  person  so  charged 
to  the  proper  jail,  there  to  remain  until  such  surrender  shall 
be  made.  .  .  ." 

§  2185.  Hearing  to  Be  Public  on  Land. 

§  1,  Act  Aug.  3,  1882,  ch.  878,  22  Stat.  at  L.  215,  Comp. 
Stat.  1901,  p.  3593,  3  F.  8.  A.  89,  Rose's  Code,  §  1643. 
"That  all  hearings  in  cases  of  extradition  under  treaty  stipu- 
lation or  convention  shall  be  held  on  land,  publicly,  and  in 
a  room  or  office  easily  accessible  to  the  public." 

§  2186.  Witnesses  for  Indigent  Prisoners. 

§  3,  Act  Aug.  3,  1882,  ch.  878,  Comp.  Stat.  1901,  p.  8598, 
3  F.  8.  A.  89, 'Rose's  Code,  §  1643.  "That  on  the  hearing  of 
any  case  under  a  claim  of  extradition  by  any  foreign  govern- 
ment, upon  affidavit  being  filed  by  the  person  charged,  setting 
forth  that  there  are  witnesses  whose  evidence  is  material  to 
his  defense,  that  he  cannot  safely  go  to  trial  without  them, 
what  he  expects  to  prove  by  each  of  them,  .airl  that  he  is  not 
possessed  of  sufficient  means,  and  is  actually  unable  to  pay 
the  fees  of  such  witnesses,  the  judge  or  commissioner  before 
whom  such  claim  for  extradition  is  heard  may  order  that 
such  witnesses  be  subpoenaed ;  and  in  such  cases  the  costs  in- 
curred by  the  process,  and  the  fees  of  witnesses,  shall  be  paid 
in  the  same  manner  that  similar  fees  are  paid  in  the  case  of 
witnesses  subpoenaed  in  behalf  of  the  United  States." 

§  2187.  Evidence  on  the  Hearing. 

§§  5  and  6,  Act  Aug.  3,  1882,  ch.  878,  22  Stat.  at  L.  216, 
Comp.  Stat.  1901,  p.  8593,  3  F.  8.  A.  89,  Rose's  Code,  §  1643. 
"Sec.  5  (Evidence  on  hearing.)  That  in  all  cases  where  any 
depositions,  warrants,  or  other  papers  or  copies  thereof  shall 
be  offered  in  evidence  upon  the  hearing  of  any  extradition 
case  under  title  sixty-six  of  the  Revised  Statutes  of  the  United 
States,  such  depositions,  warrants,  and  other  papers,  or  the 
copies  thereof,  shall  be  received  and  admitted  as  evidence  on 
such  hearing  for  all  the  purposes  of  such  hearing  if  they 


§    2188  EXTRADITION  579 

shall  be  properly  and  legally  authenticated  so  as  to  entitle 
them  to  be  received  for  similar  purposes  by  the  tribunals  of 
the  foreign  country  from  which  the  accused  party  shall  have 
escaped,  and  the  certificate  of  the  principal  diplomatic  or  con- 
sular officer  of  the  United  States  resident  in  such  foreign 
country  shall  be  proof  that  any  deposition,  warrant,  or  other 
paper  or  copies  thereof,  so  offered,  are  authenticated  in  the 
manner  required  by  this  act" 

uSec.  6.  (Repeal.)  The  act  approved  June  nineteenth, 
eighteen  hundred  and  seventy-six,  entitled,  "An  Act  to 
Amend  Section  fifty-two  hundred  and  seventy-one  of  the 
Revised  Statutes  of  the  United  States,"  and  so  much  of  said 
section  fifty-two  hundred  and  seventy-one  of  the  Revised  Stat- 
utes of  the  United  States  as  is  inconsistent  with  the  provi- 
sions of  this  act  are  hereby  repealed." 

§  5211,  R.  8.,  Comp.  Stat.  1901,  p.  3593,  3  F.  8.  A.  76, 
Rose's  Code,  §  1645.  "(Evidence  on  the  hearing.)  In  every 
case  of  complaint,  and  of  a  hearing  upon  the  return  of  the 
warrant  of  arrest,  copies  of  the  depositions  upon  which  an 
original  warrant  in  any  foreign  country  may  have  been 
granted,  certified  under  the  hand  of  the  person  issuing  such 
warrant,  and  attested  upon  the  oath  of  the  party  producing 
them  to  be  true  copies  of  the  original  depositions,  may  be 
received  in  evidence  of  the  criminality  of  the  person  so  ap- 
prehended, if  they  are  authenticated  in  such  manner  as  would 
entitle  them  to  be  received  for  similar  purposes  by  the  tri- 
bunals of  .the  foreign  country  from  which  the  accused  party 
escaped.  The  certificate  of  the  principal  diplomatic  or  con- 
sular officer  of  the  United  States  resident  in  such  foreign 
country  shall  be  proof  that  any  paper  or  other  document  so 
offered  is  authenticated  in  the  manner  required  by  this  sec- 
tion." 

§  2188.  Surrender  of  Person  by  Secretary  of  State  for  a 
Fair  and  Impartial  Trial. 

Last  Pt.  §  5270,  R.  8.,  Comp.  Stat.  1901,  p.  3591,  3  F.  8. 
A.  68,  Rose's  Code,  §  1642.  ".  .  .  If  so  held  such  person 
shall  be  returned  and  surrendered  to  the  authorities  in  control 
of  such  foreign  country  or  territory  on  the  order  of  the  Secre- 
tary of  State  of  the  United  States,  and  such  authorities  shall 
secure  to  such  a  person  a  fair  and  impartial  trial." 

First  Pt.  §  5272,  R.  8.,  Comp.  Stat.  1901,  p.  3593,  3  F.  8. 


580        MOXTGOMEBY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2101 

A.  77,  Hose's  Code,  §  1647.  "It  shall  be  lawful  for  the  Secre- 
tary of  State,  under  his  hand  and  seal  of  office,  to  order  the 
person  so  committed  to  be  delivered  to  such  person  as  shall  be 
authorized,  in  the  name  and  on  behalf  of  such  foreign  govern- 
ment, to  be  tried  for  the  crime  of  which  such  person  shall  be 
so  accused,  and  such  person  shall  be  delivered  up  accordingly ; 
and  it  shall  be  lawful  for  the  person  so  authorized  to  hold  such 
person  in  custody,  and  to  take  him  to  the  territory  of  such 
foreign  government,  pursuant  to  such  treaty.  .  .  ." 

§  2189.  Retaking  of  Escaped  Person  Held  for  Extradi- 
tion. 

Last  PL  §  5272,  R.  8.,  Comp.  Stat.  1901,  p.  3595,  3  F.  S. 
A.  77,  Rose's  Code,  §  1647.  ".  .  .  If  the  person  so  ac- 
cused shall  escape  out  of  any  custody  to  which  he  shall  be 
committed,  or  to  which  he  shall  be  delivered,  it  shall  be  law- 
ful to  retake  such  person  in  the  same  manner  as  any  person 
accused  of  any  crime  against  the  laws  in  force  in  that  part 
of  the  United  States  to  which  he  shall  so  escape,  may  be 
retaken  on  an  escape." 

§  2190.  Time  Allowed  for  Extradition  Two  Months  after 
Commitment. 

§  5273,  R.  8.,  Comp.  Stat.  1901,  p.  3596,  3  F.  8.  A.  77, 
Rose's  Code,  §  1648.  "Whenever  any  person  who  is  com- 
mitted under  this  title  or  any  treaty,  to  remain  until  de- 
livered up  in  pursuance  of  a  requisition,  is  not  so  delivered 
up  and  conveyed  out  of  the  United  States  within  two  cal- 
endar months  after  such  commitment,  over  and  above  the 
time  actually  required  to  convey  the  prisoner  from  the  jail 
to  which  he  was  committed,  by  the  readiest  way,  out  of  the 
United  States,  it  shall  be  lawful  for  any  judge  of  the  United 
States,  or  of  any  state,  upon  application  made  to  him  by  or 
on  behalf  of  the  person  so  committed,  and  upon  proof  made 
to  him  that  reasonable  notice  of  the  intention  to  make  such 
application  has  been  given  to  the  Secretary  of  State,  to  order 
the  person  so  committed  to  be  discharged  out  of  custody,  un- 
less sufficient  cause  is  shown  to  such  judge  why  such  dis- 
charge ought  not  to  be  ordered." 

§  2191.  Extradition   Provisions   Continue   During   Exist- 
ence of  Treaty. 

§  5274,  R.  S.,  Comp.  Stat.  1901,  p.  3596,  3  F.  S.  A.  77, 


§    2194  EXTRADITION  581 

Rose's  Code,  §  1649.  "The  provisions  of  this  title  relating  to 
the  surrender  of  persons  who  have  committed  crimes  in 
foreign  countries  shall  continue  in  force  during  the  existence 
of  any  treaty  of  extradition  with  any  foreign  government, 
and  no  longer." 

s 

§  2192.  Transportation  and  Protection  of  Person  Extra- 
dited to  the  United  States. 

§  5275,  R.  8.,  Comp.  Stat.  1901,  p.  3596,  3  F.  8.  A.  78, 
Rose's  Code,  §  1650.  "Whenever  any  person  is  delivered 
by  any  foreign  government  to  an  agent  of  the  United  States, 
for  the  purpose  of  being  brought  within  the  United  States 
and  tried  for  any  crime  of  which  he  is  duly  accused,  the 
President  shall  have  power  to  take  all  necessary  measures  for 
the  transportation  and  safe-keeping  of  such-  accused  person, 
and  for  his  security  against  lawless  violence,  until  the  final 
conclusion  of  his  trial  for  the  crimes  or  offenses  specified  in 
the  warrant  of  extradition,  and  until  his  final  discharge  from 
custody  or  imprisonment  for  or  on  account  of  such  crimes  or 
offenses,  and  for  a  reasonable  time  thereafter,  and  may  em- 
ploy such  portion  of  the  land  or  naval  forces  of  the  United 
States,  or  of  the  militia  thereof,  as  may  be  necessary  for  the 
safe-keeping  and  protection  of  the  accused." 

§  2193.  Same — Powers  of  Agent  Receiving  Such  Person 
Extradited  from  Foreign  Country. 

§  5276,  R.  8.,  Comp.  Stat.  1901,  p.  3597,  3  F.  8.  A. 
78,  Rose's  Code,  §  1651.  "Any  person  duly  appointed  as 
agent  to  receive,  in  behalf  of  the  United  States,  the  delivery, 
by  a  foreign  government,  of  any  person  accused  of  crime 
committed  within  the  jurisdiction  of  the  United  States, 
and  to  convey  him  to  the  place  of  his  trial,  shall  have 
all  the  powers  of  a  marshal  of  the  United  States,  in  the  sev- 
eral districts  through  which  it  may  be  necessary  for  him  to 
pass  with  such  prisoner,  so  far  as  such  power  is  requisite  for 
the  prisoner's  safe-keeping." 

§  2194.  Same — Penalty  for  Opposing  Agent  or  Attempt- 
ing Rescue. 

§  5277,  R.  8.,  Comp.  Stat.  1901,  p.  3597,  3  F.  8.  A.  78, 
Rose's  Code,  §  1652.  "Every  person  who  knowingly  and  wil- 
fully obstructs,  resists,  or  opposes  such  agent  in  the  execution 


582        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2197 

of  his  duties,  or  who  rescues  or  attempts  to  rescue  such 
prisoner,  whether  in  the  custody  of  the  agent  or  of  any  officer 
or  person  to  whom  his  custody  has  lawfully  been  committed, 
shall  be  punishable  by  a  tine  of  not  more  than  one  thousand 
dollars,  and  by  imprisonment  for  not  more  than  one  year." 

§  2195.  Interstate  Extradition. 

§  5278,  R.  8.,  Comp.  8 tat.  1901,  p.  3597,  3  F.  8.  A.  78, 
Rose's  Code,  §  1654-  "Whenever  the  executive  authority  of 
any  state  or  territory  demands  any  person  as  a  fugitive  from 
justice,  of  the  executive  authority  of  any  state  or  territory 
to  which  such  person  has  fled,  and  produces  a  copy  of  an 
indictment  found  or  an  affidavit  made  before  a  magistrate  of 
any  state  or  territory,  charging  the  person  demanded  with 
having  committed  treason,  felony,  or  other  crime,  certified  as 
authentic  by  the  governor  or  chief  magistrate  of  the  state 
or  territory  from  whence  the  person  so  charged  has  fled,  it 
shall  be  the  duty  of  the  executive  authority  of  the  state  or 
territory  to  which  such  person  has  fled  to  cause  him  to  be 
arrested  and  secured,  and  to  cause  notice  of  the  arrest  to  be 
given  to  the  executive  authority  making  such  demand,  or  to 
the  agent  of  such  authority  appointed  to  receive  the  fugitive, 
and  to  cause  the  fugitive  to  be  delivered  to  such  agent  when 
he  shall  appear.  If  no  such  agent  appears  within  six  months 
from  the  time  of  the  arrest,  the  prisoner  may  be  discharged. 
All  costs  or  expenses  incurred  in  the  apprehending,  securing, 
and  transmitting  such  fugitive  to  the  state  or  territory  mak- 
ing such  demand  shall  be  paid  by  such  state  or  territory." 

§  2196.  Penalty    for    Resisting    Agent    or    Attempting 
Rescue,  Interstate  Extradition. 

§  5279,  R.  8.,  Camp.  Stat.  1901,  p.  3598,  3  F.  8.  A.  88, 
Rose's  Code,  §  1655.  "Any  agent  so  appointed  who  receives 
the  fugitive  into  his  custody  shall  be  empowered  to  transport 
him  to  the  state  or  territory  from  which  he  has  fled.  And 
every  person  who,  by  force,  sets  at  liberty  or  rescues  the  fu- 
gitive from  such  agent  while  so  transporting  him,  shall  be 
fined  not  more  than  five  hundred  dollars  or  imprisoned  not 
more  than  one  year." 

§  2197.  Arrest  of  Deserting  Seaman  from  Foreign  Ves- 
sel. 

§  5280,  R.  8.,  Comp.  Stat.  1901,  p.  3598,  3  F.  S.  A.  88, 


§    2197  EXTRADITION  583 

Rose's  Code,  §  1523.  "On  application  of  a  consul  or  vice 
consul  of  any  foreign  government  having  a  treaty  with  the 
United  States  stipulating  for  the  restoration  of  seamen  de- 
serting, made  in  writing,  stating  that  the  person  therein 
named  has  deserted  from  a  vessel  of  any  such  government, 
while  in  any  port  of  the  United  States,  and  on  proof  by  the 
exhibition  of  the  register  of  the  vessel,  ship's  roll,  or  other 
official  document,  that  the  person  named  belonged,  at  the  time 
of  desertion,  to  the  crew  of  such  vessel,  it  shall  be  the  duty 
of  any  court,  judge,  commissioner  of  any  circuit  court,  jus- 
tice, or  other  magistrate,  having  competent  power,  to  issue 
warrants  to  cause  such  person  to  be  arrested  for  examination. 
If,  on  examination,  the  facts  stated  are  found  to  be  true,  the 
person  arrested,  not  being  a  citizen  of  the  United  States,  shall 
be  delivered  up  to  the  consul  or  vice  consul,  to  be  sent  back 
to  the  dominions  of  any  such  government,  or,  on  the  request 
and  at  the  expense  of  the  consul  or  vice  consul,  shall  be  de- 
tained until  the  consul  or  vice  consul  finds  an  opportunity 
to  send  him  back  to  the  dominions  of  any  such  government. 
Xo  person  so  arrested  shall  be  detained  more  than  two  months 
after  his  arrest;  but  at  the  end  of  that  time  shall  be  set  at 
liberty,  and  shall  not  be  again  molested  for  the  same  cause. 
If  any  such  deserter  shall  be  found  to  have  committed  any 
crime  or  offense,  his  surrender  may  be  delayed  until  the  tri- 
bunal before  which  the  case  shall  be  depending,  or  may  be 
cognizable,  shall  have  pronounced  its  sentence,  and  such  sen- 
tence shall  have  been  carried  into  effect." 


CHAPTER  44. 

HABEAS  CORPUS. 

Sec. 

2200.  Constitutional  Provision. 

2201.  Courts  Authorized  to  Issue  Writ  of  Habeas  Corpus. 

2202.  Power  of  Judges  to  Grant  Writs  of  Habeas  Corpus. 
2203 — Cases  Where  Federal  Writ  of  Habeas  Corpus  will  Issue; 

2204.  Application  for  Writ  of  Habeas  Corpus— How  Made. 

2205.  Allowance  and  Direction  of  Writ  of  Habeas  Corpus. 

2206.  Time  of  Return  of  Writ  of  Habeas  Corpus. 

2207.  Form  of  Return  of  Writ  of  Habeas  Corpus. 

2208.  Producing  the  Person. 

2209.  The  Day  for  Hearing. 

2210.  Denial    of    Return — Counter    Allegations — Amendments. 

2211.  Summary  Hearing — Disposition   of  Party. 

2212.  In  Cases  Involving  the  Law  of  Nations — Notice  to  be  Served  on  State 

Attorney  General. 

§  2200.  Constitutional  Provision. 

PL  §  9,  Art.  1,  U.  8.  Const.  "The  privilege  of  the  writ  of 
habeas  corpus  shall  not  be  suspended,  unless  when  in  cases 
of  rebellion  or  invasion  the  public  safety  may  require  it." 

§  2201.  Courts  Authorized  to  Issue  Writ  of  Habeas  Cor- 
pus. 

§  262,  Judicial  Code,9'  36  Stat.  at  L.  1162,  Comp.  St.  1911, 
p.  235,  1912  Supp.  F.  8.  A.  v.  1,  p.  241.  "The  Supreme 
Court,  the  circuit  courts  of  appeals,  and  the  district  courts 
shall  have  power  to  issue  all  writs  not  specially  provided  for 
by  statute,  Avhich  may  be  necessary  for  the  exercise  of  their 
respective  jurisdictions,  and  agreeable  to  the  usages  and  prin- 
ciples of  law." 

This  section  supersedes  section  751  of  the  Revised  Statutes. 
The  character  of  the  restraint  or  imprisonment  suffered  by  a 

»  For  Annotation  of  this  §  262,  Judicial  Code,   see  footnote   d,   ante,   our 
§  1054. 

584 


§    2201  HABEAS    CORF US  585 

party  applying  for  the  writ  of  habeas  corpus  must  be  actual  con- 
finement or  the  present  means  of  enforcing  it.  Something  more 
than  moral  restraint  is  necessary  to  make  a  case.1  Jurisdiction 
of  a  writ  of  habeas  corpus  does  not  depend  upon  the  question 
whether  there  has  been  a  formal  commitment  or  not.8  Arrest 
under  a  civil  process  is  not  a  case  for  remedy  by  habeas  corpus.3 
In  order  to  obtain  the  benefit  of  this  writ  and  to  procure  its 
being  issued  by  the  court  or  justice  or  judge  who  has  a  right  to 
order  its  issue,  it  should  be  made  to  appear,  upon  the  applica- 
tion for  the  writ,  that  it  is  founded  upon  some  matter  which 
justifies  the  exercise  of  Federal  authority,  and  which  is  necessary 
to  the  enforcement  of  rights  under  the  Constitution,  laws,  or 
treaties  of  the  United  States.4  The  Supreme  Court  has  authority 
to  issue  the  writ  of  habeas  corpus,  but  except  in  cases  affecting 
ambassadors,  other  public  ministers,  or  consuls,  and  those  in 
which  a  state  is  a  party,  it  can  only  be  done  for  a  review  of  the 
judicial  decision  of  some  inferior  officer  or  court.5  The  courts 
of  the  United  States  will  not  discharge  the  prisoner  by  habeas 
corpus  in  advance  of  a  final  determination  of  his  case  in  the 
courts  of  the  state;  and  even  after  such  final  determination  in 
those  courts  will  generally  leave  the  petitioner  to  the  usual  and 
orderly  course  of  proceeding  by  writ  of  error  from  the  Supreme 
Court.8  When  a  person  has  been  discharged  upon  habeas  corpus 
the  issues  of  law  and  fact  involved  are  res  judicata,,  and  the  per- 
son so  discharged  cannot,  for  the  same  cause,  be  again  lawfully 
arrested.7 


1  Wales  v.  Whitney,  114  U.  S.  564,  29  L.  ed.  277,  5  Sup.  Ct.  Rep.  1050. 

2  Matter  of  McDonald,  9  Am.  L.  Reg'.  661,  16  Fed.  Gas.  No.  8,751. 

3  Ex  parte  Wilson,  6  Cranch,  52,  3  L.  ed.  149.     See  also  In  re  Mineau,  45 
Fed.  188. 

4  In  re  Burrus,  136  U.  S.  586,  34-L.  ed.  1500,  10  Sup.  Ct.  Rep.  850. 

5  Ex  parte  Hung  Hang,  108  U.  S.  552,  27  L.  ed.  811,  2  Sup.  Ct.  Rep.  863: 
In  re  Lane,   135  U.  S.  443,   34  L.  ed.  219,   10   Sup.   Ct.   Rep.   760;    Ex   parte 
Terry,  128  U.  S.  289,  32  L.  ed.  405,  9  Sup.  Ct.  Rep.  77;   Ex  parte  Parks,  93 
U.  S.  18,  23  L.  ed.  787;  Ex  parte  Siebold,  100  U.  S.  375,  25  L.  ed.  718. 

6  Whitten  v.  Tomlinson,  160  U.  S.  231,  40  L.  ed.  406,  16  Sup.  Ct.  Rep.  297  ; 
Baker  v.  Grice,  169  U.  S.  284,  42  L.  ed.  748,  18  Sup.  Ct.  Rep.  323;   Kohl  v. 
Lehlback,  160  U.  S.  293,  40  L.  ed.  432,  16  Sup.  Ct.  Rep.  304;  In  re  Frederich, 
14!)  U.  S.  70,  37  L.  ed.  653,  13  Sup.  Ct.  Rep.  793. 

7  United    States   v.   Chung   Shee,   71    Fed.   277.     But   see   In   re   White,   45 
Ffd.  237 :   Ex  parte  Kaine,  3  Blatchf.  1,  Fed.  Cas.  No.  7,597. 


586        MONTGOMEKY'S  MANUAL  ov  FEDERAL  PBOCKDURE    §  2203 

§  2202.  Power  of  Judges  to  Grant  Writs  of  Habeas  Cor- 
pus. 

§  752,  R.  S.,  Comp.  Stat.  1901,  p.  592,  S  F.  8.  A.  167, 
Rose's  Code,  §  1678.  "The  several  justices  and  judges  of 
the  said  courts,  within  their  respective  jurisdiction,  shall 
have  power  to  grant  writs  of  habeas  corpus  for  the  purpose 
of  an  inquiry  into  the  cause  of  restraint  of  liberty." 

The  clause,  "cause  of  restraint  of  liberty,"  will  allow  writs 
of  habeas  corpus  to  stand,  and  at  common  law  they  do  stand,  for 
all  unlawful  restraints,  whether  under  color  of  process,  or  through 
the  illegal  acts  of  individuals,  or  under  a  commitment  to  an 
insane  asylum.8 

§  2203.  Cases  Where  Federal  Writ  of  Habeas  Corpus 
will  Issue. 

§  753,  R.  8.,  Comp.  Stat:  1901,  p.  592 ,  3  F.  S.  A.  167, 
Rose's  Code,  §  1674-  "The  writ  of  habeas  corpus  shall  in  no 
case  extend  to  a  prisoner  in  jail,  unless  where  he  is  in  custody 
under  or  by  color  of  the  authority  of  the  United  States,  or 
is  committed  for  trial  before  some  court  thereof;  or  is  in 
custody  for  an  act  done  or  omitted  in  pursuance  of  a  law 
of  the  United  States,  or  of  an  order,  process,  or  decree  of  a 
court  or  judge  thereof;  or  is  in  custody  in  violation  of  the 
Constitution  or  of  a  law  or  treaty  of  the  United  States;  or, 
being  a  subject  or  citizen  of  a  foreign  state,  and  domiciled 
therein,  is  in  custody  for  an  act  done  or  omitted  under  any 
alleged  right,  title,  authority,  privilege,  protection,  or  exemp- 
tion claimed  under  the  commission,  or  order,  or  sanction 
of  any  foreign  state,  or  under  color  thereof,  the  validity  and 
effect  whereof  depend  upon  the  la\v  of  nations;  or  unless  it 
is  necessary  to  bring  the  prisoner  into  court  to  testify." 

In  all  cases  where  Federal  officers,  civil  or  military,  have  the 
custody  and  control  of  a  person  claimed  to  be  unlawfully  re- 
strained of  liberty,  such  person  is  restrained  of  liberty  under 
color  of  authority  of  the  United  States,  and  the  Federal  courts 

«  King  T.  McLean  Asylum,  64  Fed.  331,  12  C.  C.  A.  145. 


§    2205  HABEAS    COB PUS  587 

can  proceed  to  determine  the  question  of  unlawful  restraint,  be- 
cause no  other  court  can  properly  do  so.9 

§  2204.  Application  for  Writ  of  Habeas  Corpus — How 
Made. 

§  754,  R.  8.,  Comp.  Stat.  1901,  p.  593,  3  F.  8.  A.  172, 
Roses  Code,  §  .7675.  "Application  for  writ  of  habeas  cor- 
pus shall  be  made  to  the  court,  or  justice,  or  judge  authorized 
to  issue  the  same,  by  complaint  in  writing,  signed  by  the 
person  for  whose  relief  it  is  intended,  setting  forth  the  facts 
concerning  the  detention  of  the  party  restrained,  in  whose 
custody  he  is  detained,  and  by  virtue  of  what  claim  or  au- 
thority, if  known.  The  facts  set  forth  in  the  complaint  shall 
be  verified  by  the  oath  of  the  person  making  the  application." 

It  is  not  enough  in  order  to  require  the  court  to  issue  a  writ 
of  habeas  corpus,  that  the  petition  alleges  that  the  prisoner  is 
held  in  violation  of  the  Constitution  of  the  United  States,  or  of 
a  treaty  with  a  foreign  nation.  That  is  a  mere  formal  allegation, 
covering  conclusions  of  law  as  well  as  of  fact,  and  the  petition 
must  present  specific  allegations  raising  an  issue.10 

Facts  duly  alleged  may  be  taken  to  be  true,  unless  denied  by 
the  return  or  controlled  by  other  evidence.  But  no  allegation  of 
fact  in  the  petition  can  be  assumed  to  be  admitted  unless  distinct 
and  unambiguous.11 

§  2205.  Allowance  and  Direction  of  Writ  of  Habeas  Cor- 
pus. 

§  755,  R.  8.,  Comp.  Stat.  1901,  p.  593,  3  F.  8.  A.  173, 
Rose's  Code,  §  1676.  "The  court,  or  justice,  or  judge  to 
whom  such  application  is  made  shall  forthwith  award  a  writ 
of  habeas  corpus,  unless  it  appears  from  the  petition  itself 

9  United   States   v.   Crook,   5    Dill.   453,    Fed.   Cas.   No.    14,891;    Matter   of 
McDonald,  9   Am.  L.  Reg.   661,    16   Fed.   Cas.   No.   8,751;    Matter   of   Keeler, 
Hempst.  306,  Fed.  Cas.  No.  7,637. 

10  In   re  Storti,   109   Fed.   807;    King  v.  McLean  Asylum,  64   Fed.  325,   12 
C.  C.  A.  139,  26  L.R.A.  784. 

"Whitten  v.  Tomlinson,  160  U.  S.  231,  40  L.  ed.  406,  16  Sup.  Ct.  Rep. 
297;  Kohl  v.  Lehiback,  160  U.  S.  293,  40  L.  ed.  432,  16  Sup.  Ct.  Rep.  304. 


588        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2207 

that  the  party  is  not  entitled  thereto.  The  writ  shall  be 
directed  to  the  person  in  whose  custody  the  party  is  de- 
tained." 

It  is  not  a  question,  at  the  time  of  the  application  for  the  writ, 
whether  or  not  the  facts  alleged  in  the  petition  are  true  or  false. 
They  are  to  be  verified  by  the  oath  of  the  petitioner,  and  if  he 
sets  out  in  his  petition  what  is  necessary  to  give  a  Federal  court 
jurisdiction,  the  writ  must  issue,  and  the  truth  or  falsity  of  the 
facts  alleged  must  be  determined  at  the  hearing.12 

§  2206.  Time  of  Return  of  Writ  of  Habeas  Corpus. 

§  756,  R.  8.,  Comp.  Stat.  1901,  p.  593,  3  F.  S.  A.  113, 
Rose's  Code,  §  1677.  "Any  person  to  whom  such  writ  is 
directed  shall  make  due  return  thereof  within  three  days 
thereafter,  unless  the  party  be  detained  beyond  the  distance 
of  twenty  miles ;  and  if  beyond  that  distance  and  not  be- 
yond a  distance  of  a  hundred  miles,  within  ten  days ;  and 
if  beyond  the  distance  of  a  hundred  miles,  within  twenty 
days.'" 

< 

A  reasonable  time  has  always  been  allowed  for  making  the  re- 
turn, and  it  is  not  to  be  presumed  that  one  will  not  be  made.13 

§  2207.  Form  of  Return  of  Writ  of  Habeas  Corpus. 

§  757,  R.  S.,  14  Stat.  at  L.  385,  Comp.  Stat.  1901,  p.  593, 
3  F.  S.  A.  173,  Rose's  Code,  §  1678.  "The  person  to  whom 
the  writ  is  directed  shall  certify  to  the  court,  or  justice,  or 
judge  before  whom  it  is  returnable  the  true  cause  of  the  de- 
tention of  such  party." 

A  return  should  be  signed  by  the  person  to  whom  the  writ  is' 
directed  or  should  be  accompanied  by  an  explanation  why  that  is 
not  done.14 


12  Electoral    College's    Case,    1    Hughes,   571,    Fed.    Cas.    No.    4,336;    In    re 
Greenwald,  77   Fed.  590. 

13  Ex  parte  Baez.  177  U.  S.  378,  44  L.  ed.  813.  20  Sup.  Ct.  Rep.  673. 
"  Seavey  v.  Seymour,  3  Cliff.  439,  Fed.  C'as.  No.  12,596. 


$  2211  HABEAS  CORPUS  589 

§  2208.  Producing  the  Person. 

§  758,  R.  8.,  Comp.  Stat.  1901,  p.  593,  3  F.  8.  A.  174, 
Ease's  Code,  §  7679.  "The  person  making  the  return  shall 
at  the  same  time  bring  the  body  of  the  party  before  the  judge 
who  granted  the  writ." 

§  2209.  The  Day  for  Hearing. 

§  759,  R.  S.t  Comp.  Stat.  1901,  p.  59 4,  3  F.  S.  A.  174, 
Rose's  Code,,  §  1680.  "When  the  writ  is  returned,  a  day 
shall  be  set  for  the  hearing  of  the  cause,  not  exceeding  five 
days  thereafter,  unless  the  party  petitioning  requests  a  longer 
time." 

§  2210.  Denial  of  Return — Counter  Allegations — Amend- 
ments. 

§  760,  R.  S.,  14  Stat.  at  L.  835,  Comp.  Stat.  1901,  p.  594, 
3  F.  S.  A.  174,  Rose's  Code,  §1681.  "The  petitioner  or  the 
party  imprisoned  or  restrained  may  deny  any  of  the  facts  set 
forth  in  the  return,  or  may  allege  any  other  facts  that  may  be 
material  in  the  case.  Said  denials  or  allegations  shall  be 
under  oath.  The  return  and  all  suggestions  made  against  it 
may  be  amended,  by  leave  of  the  court,  or  justice,  or  judge, 
before  or  after  the  same  are  filed,  so  that  thereby  the  material 
facts  may  be  ascertained." 

The  averments  of  the  answer  to  the  return  will  be  taken  as 
denied  by  the  respondent,  as  no  further  pleading  is  required  by 
the  statute.15 

§  2211.  Summary  Hearing — Disposition  of  Party. 

§  761,  R.  S.,  14  Stat.  at  L.  385,  Comp.  Stat.  1901,  p.  594, 
3  F.  S.  A.  174,  Roses  Code,  §  1682.  "The  court  or  justice 
or  judge  shall  proceed  in  a  summary  way  to  determine  the 
facts  of  the  case,  by  hearing  the  testimony  and  arguments, 
and  thereupon  to  dispose  of  the  party  as  law  and  justice  re- 
quire." 

This  section  means  that  if  he  is  held  in  custody  in  violation  of 
the  Constitution  or  a  law  of  the  United  States,  or  for  an  act 

15  Matter  of  Leary,  10  Ben.  197,  Fed.  Cas.  No.  8,162. 


590        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2212 

done  or  omitted  in  pursuance  of  a  law  of  the  United  States,  he 
must  be  discharged.16  Where  a  person  is  held  on  process  on  a 
final  judgment,  after  conviction  on  a  trial  on  an  indictment,  and 
a  habeas  corpus  is  issued,  and  the  return  to  the  writ  states  the  pro- 
cess as  the  cause  of  detention,  the  "facts"  the  court  is  required 
to  determine,  either  on  such  return  alone  or  by  the  aid  of  a  cer- 
tiorari,  are  the  final  judgment,  the  conviction,  the  fact  of  trial, 
and  the  indictment.  The  particulars  of  the  evidence  which  led  to 
the  conviction  are  no  part  of  such  "facts."  "  In  proceedings  upon 
habeas  corpus  the  authority  of  the  courts  is  not  so  restricted  as  to 
compel  them  in  every  instance  either  to  discharge  the  prisoner 
absolutely  or  to  remand  him  to  the  custody  of  the  person  pro- 
ducing him,  but  the  provision  empowering  and  requiring  the 
court  to  "dispose  of  the  party  as  law  and  justice  require,"  au- 
thorizes the  court  to  commit  the  custody  of  the  party  to  anyone 
showing  a  right  thereto.18  The  injunction  to  hear  the  case  sum- 
marily, and  thereupon  dispose  of  the  party  as  law  and  justice 
may  require,  does  not  deprive  the  court  of  discretion  as  to  the 
time  and  mode  in  which  it  will  exert  the  powers  conferred  upon 
it.  That  discretion  should  be  exercised  in  the  light  of  the  re- 
lations existing,  under  our  system  of  government,  between  the 
judicial  tribunals  of  the  Union  and  of  the  states,  and  in  recogni- 
tion of  the  fact  that  the  public  good  requires  that  those  relations 
be  not  disturbed  by  unnecessary  conflict  between  courts  equally 
bound  to  guard  and  protect  rights  secured  by  the  Constitution.19 

§  2212.  In  Cases  Involving  the  Law  of  Nations — Notice 
to  be  Served  on  State  Attorney  General. 

§  762,  R.  8.,  5  Stat.  at  L.  539,  Comp.  Stat.  1901,  p.  594, 
3  F.  8.  A.  115,  Rose's  Code,  §  1683.  "When  a  writ  of  habeas 
corpus  is  issued  in  the  case  of  any  prisoner  who,  being  a  sub- 
ject or  citizen  of  a  foreign  state  and  domiciled  therein,  is 

16  In  re  Neagle,  135  U.  S.  1,  34  L.  ed.  55,  10  Sup.  Ct.  Rep.  658 ;  In  re  Ander- 
son, 94  Fed.  487. 

17  In  re  Stupp,  12  Blatchf.  501,  Fed.  Gas.  No.   13,563. 

iSMotherwell  v.  United  States,  107  Fed.  437,  48  C.  C.  A.  97;  Medley  Peti- 
tioner. 134  U.  S.  160,  33  L.  ed.  835,  10  Sup.  Ct.  Rep.  384. 

l»  Ex  parte  Royall,  117  U.  S.  254,  29  L.  ed.  872,  6  Sup.  Ct.  Rep.  742;  Minne- 
sota v.  Brundage*  180  U.  S.  499,  45  L.  ed.  639,  21  Sup.  Ct.  Rep.  455. 


§  2212  HABEAS  COEPUS  591 

committed  or  confined  or  in  custody  by  or  under  authority 
or  law  of  any  one  of  the  United  States,  or  process  founded 
thereon,  on  account  of  any  act  done  or  omitted  under  an 
alleged  right,  title,  authority,  privilege,  protection,  or  exemp- 
tion, claimed  under  the  commission  or  order  or  sanction 
of  any  foreign  state,  or  under  color-4hereof,  the  validity 
and  effect  whereof  depend  upon  the  law  of  nations,  notice 
of  the  said  proceeding,  to  be  prescribed  by  the  court  or 
justice  or  judge  at  the  time  of  granting  said  writ,  shall  be 
served  on  the  attorney  general  or  other  officer  prosecuting 
the  pleas  of  said  state." 


CHAPTEE    45. 

MISCELLANEOUS  PROVISIONS. 

Sec. 

2220.  Construction  of  Code. 

2221.  Definitions. 

2222.  Priority  of  Revenue  Cases  or  Where  State  a  Party. 

2223.  Suits  under  Revenue  and  Postal  Laws,  etc.,  Brought  in  Name  of  United 

States. 

2224.  District  Attorney's  Prosecution  of  Fraud  on  the  Revenue. 

2225.  Warrants  for  Searches  and  Seizures  under  Customs  Laws. 

2226.  Procedure  in  Seizure  Cases  under  Customs  Laws. 

2227.  Bailing  Property  Seized  under  Customs  Laws. 

2228.  Special  Bail  in  Suits  for  Duties  or  Penalties  in  States  Where  Imprison-. 

ment  for  Debt  Not  Abolished. 

2229.  Committing  Defendant  Who  has  Given  Bail  in  Another  District. 

2230.  Same — Holding  Defendant  until  Final  Judgment  in  First  Suit. 

2231.  Calling  Bail   in  Kentucky. 

2232.  Bail  de  Bene  Esse  by  Clerks  in  Absence  of  Judges. 

2233.  Property  Taken  under  Revenue  Laws  Irrepleviable. 

2234.  Credits  Allowed  in  Government  Suits'  against  Individuals. 

2235.  Credits  Allowed  in  Government  Suits  under  Postal  Laws. 
2230.  Interest  in  Postal  Suits  on  Balances  Due. 

2237.  Sale  after  Condemnation  under  Revenue  Laws. 

2238.  Paying  Money  into  Court. 

2239.  Withdrawal  of  Money  Paid  into  Court. 

2240.  Liens  on  Vessels  for  Repairs,  Supplies,  or  Other  Necessaries — Procedure 

in  Rem. 

2241.  Oaths — Officers  Authorized  to  Administer  in  Investigations. 

2242.  Seizing  and  Detaining  Letters,  etc.,  Carried  Contrary  to  Law. 

2243.  Same — Disposition  of  Seizures. 

2244.  Mandamus  to  Compel  Obedience  to  Provisions  of  Interstate  Commerce 

Act  Respecting  Securing  Information  Concerning  Stocks,  Bonds,  and 
Other   Securities. 

§  2220.  Construction  of  Code. 

§  293,  Judicial  Code*  36  Siat.  at  L.  1167,  Comp.  St. 
1911,  p.  244,  1912  Supp.  F.  8.  A.  v.  1,  p.  250.    "The  pro- 

»  New  Legislation. 

592 


§    2221  MISCELLANEOUS   PKOVIS1ONS  593 

visions  of  sections  one  to  five,  both  inclusive,  of  the  Revised 
Statutes  (§  2221,  infra),  shall  apply  to  and  govern  the 
construction  of  the  provisions  of  this  act.  The  words  'this 
title,'  wherever  they  occur  herein,  shall  be  construed  to 
mean  this  act." 

\ 

§  294,  Judicial  Code?  36  Stat.  at  L.  1167,  Comp.  St. 
1911,  p.  244,  1912  Supp.  F.  S.  A.  v.  1,  p.  250.  "The  pro- 
visions of  this  act,  so  far  as  they  are  substantially  the  same 
as  existing  statutes,  shall  be  construed  as  continuations  there- 
of, and  not  as  new  enactments,  and  there  shall  be  no  implica- 
tion of  a  change  of  intent  by  reason  of  a  change  of  words  in 
such  statute,  unless  such  change  of  intent  shall  be  clearly 
manifest." 

§  295,  Judicial  Code*  36  Stat.  at  L.  1167,  Comp. 
St.  1911,  p.  244,  1912  Supp.  F.  S.  A.  v.  1,  p.  250. 
"The  arrangement  and  classification  of  the  several  sec- 
tions of  this  act  have  been  made  for  the  purpose  of 
a  more  convenient  and  orderly  arrangement  of  the  same, 
and  therefore  110  inference  or  presumption  of  a  legislative 
construction  is  to  be  drawn  by  reason  of  the  chapter  under 
which  any  particular  section  is  placed." 

§  292,  Judicial  Code,a  36  Stat.  at  L.  1167,  Comp.  St.  1911, 
p.  244,  1912  Supp.  F.  S.  A.  v.  1,  p.  249.  "Wherever,  in  any 
law  not  contained  within  this  act,  a  reference  is  made  to 
any  law  revised  or  embraced  herein,  such  reference,  upon 
the  taking  effect  hereof,  shall  be  construed  to  refer  to  the 
section  of  this  act  into  which  has  been  carried  or  revised  the 
provision  of  law  to  which  reference  is  so  made." 

§  2221.  Definitions. 

§§  1-5,  E.  S.,  Comp.  St.  1901,  pp.  3-4,  7  F.  S.  A,  134- 
"§  1.  In  determining  the  meaning  of  the  Revised  Statutes, 
or  of  any  act  or  resolution  of  Congress  passed  subsequent  to 
February  twenty-fifth,  eighteen  hundred  and  seventy-one, 
words  importing  the  singular  number  may  extend  and  be 
applied  to  several  persons  or  things;  words  importing  the 

»»  In  general,  Goins  v.  Southern  Pacific  Co.  198  Fed.  432;  Puget  Sound  Sheet 
Metal  W.  v.  Great  Northern  Ry.  Co.  195  Fed.  350. 

e  New  Legislation.    In  general,  Puget  Sound  Sheet  Metal  W.  v.  Great  North- 
ern Ry.  Co.  195  Fed.  350. 

d  New  Legislation. 
Montg.— 38. 


594        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2223 

plural  number  may  include  the  singular;  words  importing 
the  masculine  gender  may  be  applied  to  females;  the  words 
'insane  person'  and  'lunatic'  shall  include  every  idiot,  non 
compos,  lunatic,  and  insane  person ;  the  word  'person'  may 
extend  and  be  applied  to  partnerships  and  corporations,  and 
the  reference  to  any  officer  shall  include  any  person  author- 
ized by  law  to  perform  the  duties  of  such  office,  unless  the 
context  shows  that  such  words  were  intended  to  be  used  in  a 
more  limited  sense;  and  a  requirement  of  an  'oath'  shall  be 
deemed  complied  with  by  making  affirmation  in  judicial 
form. 

"§  2.  (County.)  The  word  'county'  includes  a  parish,  or 
any  other  equivalent  subdivision  of  a  state  or  territory  of  the 
United  States. 

"§  3.  (Vessel.)  The  word  'vessel'  includes  every  descrip- 
tion of  water  craft  or  other  artificial  contrivance  used,  or 
capable  of  being  used,  as  a  means  of  transportation  on  water. 

"§  4.  (Vehicle.)  The  word  'vehicle'  includes  every 
description  of  carriage  or  other  artificial  contrivance  used,  or 
capable  of  being  used,  as  a  means  of  transportation  on  land. 

"§  5.  (Company,  association.)  The  word  -'company'  or 
'association,'  when  used  in  reference  to  a  corporation,  shall 
be  deemed  to  embrace  the  words  'successors  and  assigns  of 
such  company  or  association,'  in  like  manner  as  if  these 
last-named  words,  or  words  of  similar  import,  were  ex- 
pressed." 

§  2222.  Priority  of  Revenue  Cases  or  Where  State  a  Party. 

§  949,  R.  8.,  Comp.  Stat.  1901,  p.  695,  4  F.  8.  A.  594. 
"When  a  state  is  a  party,  or  the  execution  of  the  revenue  laws 
of  a  state  is  enjoined  or  stayed,  in  any  suit  in  a  court  of  the 
United  States,  such  state  or  the  party  claiming  under  the 
revenue  laws  of  a  state,  the  execution  whereof  is  enjoined 
or  stayed,  shall  be  entitled,  on  showing  sufficient  reason,  to 
have  the  cause  heard  at  any  time  after  it  is  docketed,  in 
preference  to  any  civil  cause  pending  in  such  court  between 
private  parties." 

§  2223.  Suits    under    Revenue    and    Postal    Laws,    etc., 
Brought  in  Name  of  United  States. 

§  919,  R.  S.f  Comp.  Stat  1901,  p.  685,  4  F.  S.  A.  586. 
"All  suits  for  the  recovery  of  any  duties,  imposts,  or  taxes,  or 
for  the  enforcement  of  any  penality  or  forfeiture  provided  by 


§    2225  MISCELLANEOUS   PROVISIONS  595 

any  act  respecting  imports  or  tonnage,  or  the  registering  and 
recording  or  enrolling  and  licensing  of  vessels,  or  the  internal 
revenue,  or  direct  taxes,  and  all  suits  arising  under  the  postal 
laws,  shall  be  brought  in  the  name  of  the  United  States." 

§  2224.  District  Attorney's  Prosecution  of  Fraud  on  the 
Revenue. 

§  838;  R.  S.f  Comp.  Stat.  1901,  p.  644,  4  F.  8.  A.  151, 
Roses  Code,  §  544-  "It  shall  be  the  duty  of  every  district 
attorney  to  whom  any  collector  of  customs,  or  of  internal 
revenue,  shall  report,  according  to  law,  any  case  in  which  any 
fine,  penalty,  or  forfeiture  has  been  incurred  in  the  district 
of  such  attorney  for  the  violation  of  any  law  of  the  United 
States  relating  to  the  revenue,  to  cause  the  proper  proceedings 
to  be  commenced  and  prosecuted  without  delay,  for  the  fines, 
penalties,  and  forfeitures,  in  such  case  provided,  unless,  upon 
inquiry  and  examination,  he  shall  decide  that  such  proceed- 
ings cannot  probably  be  sustained,  or  that  the  ends  of  public 
justice  do  not  require  that  such  proceedings  should  be  insti- 
tuted ;  in  which  case  he  shall  report  the  facts  in  customs  cases 
to  the  Secretary  of  the  Treasury,  and  in  internal  revenue 
cases  to  the  Commissioner  of  Internal  Revenue  for  their 
direction.  And  for  the  expenses  incurred  and  services 
rendered  in  all  such  cases,  the  district  attorney  shall  receive 
and  be  paid  from  the  Treasury  such  sum  as  the  Secretary 
of  the  Treasury  shall  deem  just  and  reasonable,  upon  the 
certificate  of  the  judge  before  whom  such  cases  are  tried  or 
disposed  of :  Provided,  That  the  annual  compensation  of  such 
district  attorney  shall  not  exceed  the  maximum  amount  pre- 
scribed by  law,  by  reason  of  such  allowance  and  payment." 

§  2225.  Warrants  for  Searches  and  Seizures  under  Cus- 
toms Laws. 

§  3066,  R.  8.,  Comp.  Stat.  1901,  p.  2008,  2  F.  8.  A.  743, 
Rose's  Code,  §  1510.  "If  any  collector,  naval  officer,  sur- 
veyor, or  other  person  specially  appointed  by  either  of  them 
or  inspector  shall  have  cause  to  suspect  a  concealment  of  any 
merchandise  in  any  particular  dwelling-house,  store-building, 
or  other  place,  they,  or  either  of  them,  upon  proper  applica- 
tion on  oath  to  any  justice  of  the  peace,  or  district  judge 
of  cities,  police  justice,  or  any  judge  of  the  circuit  or  dis- 
trict court  of  the  United  States,  or  any  Commissioner  of 
the  United  States  circuit  court,  shall  be  entitled  to  a  warrant 


596        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  2227 

to  enter  such  house,  store,  or  other  place,  in  the  daytime 
only,  and  there  to  search  for  such  merchandise;  and  if  any 
shall  be  found,  to  seize  and  secure  the  same  for  trial ;  and 
all  such  merchandise,  upon  which  the  duties  shall  not  have 
been  paid,  or  secured  to  be  paid,  shall  be  forfeited." 

§  2226.  Procedure  in  Seizure  Cases  under  Customs  Laws. 
§  923,  R.  S.t  Comp.  Stat.  1901,  p.  686,  3  F.  S.  A.  96, 
Rose's  Code,  §§  1385, 1515.  "When  any  vessel,  goods,  wares, 
or  merchandise  are  seized  by  any  officer  of  the  customs,  and 
prosecuted  for  forfeiture  by  virtue  of  any  law  respecting  the 
revenue,  or  the  registering  and  recording,  or  the  enrolling 
and  licensing  of  vessels,  the  court  shall  cause  fourteen  days' 
notice  to  be  given  of  such  seizure  and  libel,  by  causing  the 
substance  of  such  libel,  with  the  order  of  the  court  thereon, 
setting  forth  the  time  and  place  appointed  for  trial,  to  be 
inserted  in  some  newspaper  published  near  the  place  of 
seizure,  and  by  posting  up  the  same  in  the  most  public 
manner  for  the  space  of  fourteen  days,  at  or  near  the  place 
of  trial;  and  proclamation  shall  be  made  in  such  manner  as 
the  court  shall  direct.  And  if  no  person  appears  and  claims 
such  vessel,  goods,  wares,  or  merchandise,  and  gives  bond  to 
defend  the  prosecution  thereof  and  to  respond  the  cost  in 
case  he  shall  not  support  his  claim,  the  court  shall  proceed 
to  hear  and  determine  the  cause  according  to  law." 

§  2227.  Bailing   Property   Seized   under   Customs   Laws. 

§  9.38,  R.  8.,  Comp.  Stat.  1901,  p.  690,  3  F.  8.  A.  96, 
Rose's  Code,  §§  1393,  1517.  "Upon  the  prayer  of  any 
claimant  to  the  court,  that  any  vessel,  goods,  wares,  or  mer- 
chandise, seized  and  prosecuted  under  any  laws  respecting 
the  revenue  from  imports  or  tonnage,  or  the  registering  and 
recording,  or  the  enrolling  and  licensing  of  vessels,  or  any 
part  thereof,  should  be  delivered  to  him,  the  court  shall 
appoint  three  proper  persons  to  appraise  such  property,  who 
shall  oe  sworn  in  open  court,  or  before  a  commissioner  ap- 
pointed by  the  district  court  to  administer  oaths  to  apprais- 
ers, for  the  faithful  discharge  of  their  duty ;  and  the  appraise- 
ment shall  be  made  at  the  expense  of  -the  party  on  whose 
prayer  it  is  granted.  If,  on  the  return  of  the  appraisement, 
the  claimant,  with  one  or  more  sureties,  to  be  approved  by 
the  court,  shall  execute  a  bond  to  the  United  States  for  the 
payment  of  a  sum  equal  to  the  sum  at  which  the  property 


§    2229  MISCELLANEOUS   PROVISIONS  597 

prayed  to  be  delivered  is  appraised,  and  produce  a  certificate 
from  the  collector  of  the  district  where  the  trial  is  had,  and 
of  the  naval  officer  thereof,  if  any  there  be,  that  the  duties 
on  the  goods,  wares,  and  merchandise,  or  tonnage  duty  on 
the  vessel  so  claimed,  have  been  paid  or  secured  in  like 
manner  as  if  the  same  had  been  leg'ally  entered,  the  court 
shall,  by  rule,  order  such  vessel,  goods,  wares,  or  merchandise 
to  be  delivered  to  such  claimant ;  and  the  said  bond  shall  be 
lodged  with  the  proper  officer  of  the  court.  If  judgment 
passes  in  favor  of  the  claimant,  the  court  shall  cause  the 
said  bond  to  be  canceled;  but  if  judgment  passes  against  the 
claimant,  as  to  the  whole  or  any  part  of  such  vessel,  goods, 
wares,  or  merchandise,  and  the  claimant  does  not  within 
twenty  days  thereafter  pay  into  the  court,  or  to  the  proper 
officer  thereof,  the  amount  of  the  appraised  value  of  such 
vessel,  goods,  wares,  or  merchandise  so  condemned,  with  the 
costs,  judgment  shall  be  granted  upon  the  bond,  on  motion 
in  open  court,  without  further  delay." 

§  2228.  Special  Bail  in  Suits  for  Duties  or  Penalties  in 
States  Where  Imprisonment  for  Debt  Not  Abolished. 

§  942,  R.  8.,  Comp,  Stat.  1901,  p.  963,  1  F.  S.  A.  520,- 
Rose's  Code,  §  1552.  "In  all  suits  or  prosecutions  for  the 
recovery  of  duties  or  pecuniary  penalties  prescribed  by  the 
laws  of  the  United  States,  commenced  in  any  state  where, 
by  the  laws  thereof,  imprisonment  for  debt  shall  not  have 
been  abolished,  the  person  against  whom  process  is  issued 
shall  be  held  to  special  bail,  subject  to  the  rules  which  pre- 
vail in  civil  suits  in  which  special  bail  is  required." 

§  2229.  Committing  Defendant  Who  has  Given  Bail  in 
Another  District. 

§  943,  R.  8.,  Comp.  Stat.  1901,  p.  693,  1  F.  8.  A.  520, 
Rose's  Code,  §  1553.  "When  a  defendant  who  has  procured 
bail  to  respond  to  the  judgment  in  a  suit  in  any  court  of  the 
United  States  in  any  district  is  afterward  arrested  in  any 
other  district  and  is  committed  to  a  jail,  the  use  of  which 
had  been  ceded  to  the  United  States  for  the  custody  of  pris- 
oners, the  judge  of  the  court  wherein  the  suit  in  which  the 
defendant  has  so  procured  bail  is  depending,  shall,  at  the 
request  of  the  bail,  order  that  such  defendant  be  held  in  said 
jail,  in  the  custody  of  the  marshal  of  the  district  in  which 
it  is.  The  said  marshal,  upon  the  delivery  of  such  order, 


598        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2232 

duly  authenticated,  shall  receive  such  person  into  his  cus- 
tody, and  thereupon  be  chargeable  for  an  escape,  and  shall 
forthwith  make  a  certificate,  under  his  hand  and  seal  of  such 
commitment,  and  transmit  the  same  to  the  court  from  which 
the  order  issued,  and,  if  required,  shall  make  and  deliver 
to  such  bail  or  to  his  attorney  a  duplicate  thereof.  Upon 
the  return  of  said  certificate,  the  court  which  made  the  said 
order,  or  any  judge  thereof,  may  direct  an  exoneretur  be 
entered  upon  the  bailpiece,  where  special  bail  shall  have  been 
found,  or  otherwise  discharge  such  bail." 

§  2230.  Same — Holding  Defendant  until  Final  Judgment 
in  First  Suit. 

§  944,  R-  8.,  Comp.  Stat.  1901,  p.  694,  1  F.  8.  A.  520, 
Roses  Code,  §  1554-  "When  a  defendant  is  committed  by 
virtue  of  the  order  provided  in  the  preceding  section,  he 
shall,  unless  sooner  discharged  by  law,  be  holden  in  jail 
until  final  judgment  is  rendered  in  the  suit  in  which  he  pro- 
cured bail  as  aforesaid,  and  sixty  days  thereafter,  if  such 
judgment  is  rendered  against  him,  in  order  that  he  may  be 
charged  in  execution,  which  may,  in  such  cases,  be  directed 
to  and  served  by  the  marshal  in  whose  custody  he  is." 

§  2231.  Calling  Bail  in  Kentucky. 

§  946,  R.  8.,  Comp.  Stat.  1901,  p.  694,  1  F.  8.  'A.  521, 
Rose's  Code,  §  1556.  "When  a  bail  bond  is  given  for  the 
appearance  of  any  person  to  answer  in  the  district  or  circuit 
court  for  the  district  of  Kentucky,  the  clerk  of  such  court 
shall  call  the  party  at  the  time  he  is  bound  to  appear.  If 
the  party  fails,  the  clerk  shall  enter  such  failure  on  his  min- 
utes, and  on  said  entry  judgment  may  afterward  be  made  of 
record  by  the  court ;  but  if  the  party  appears,  the  clerk  shall 
take  another  bond,  with  sureties  similar  to  the  first,  for  fur- 
ther appearance  at  the  next  succeeding  term  of  the  court, 
and  if  the  party  fails  to  give  such  other  bond  and  surety,  he 
shall  stand  committed  by  order  of  the  clerk  until  he  com- 
plies." 

§  2232.  Bail  de  Bene  Esse  by  Clerks  in  Absence  of  Judges. 

§  947,  R.  8.,  Comp.  Stat.  1901,  p.  694,  1  F.  S.  A.  521, 
Rose's  Code,  §  1557.  "Kecognizances  of  special  bail  may  be 
taken  de  bene  esse  by  the  clerks  of  the  circuit  and  district 


§     2235  MISCELLANEOUS    PROVISIONS  599 

courts,  in  the  absence  or  in  case  of  the  disability  of  the 
judges,  in  any  action  depending  in  either  of  the  said  courts, 
where  special  bail  is  demandable." 

§  2233.  Property  Taken  under  Revenue  Laws  Irreplevi- 
able. 

§  934,  R.  S.,  Comp.  Stat.  1901,  p.  689,  6  F.  8.  A.  766, 
Ease's  Code,  §§  1386,  1516.  "All  property  taken  or  de- 
tained by  any  officer  or  other  person,  under  authority  of  any 
revenue  law  of  the  United  States,  shall  be  irrepleviable,  and 
shall  be  deemed  to  be  in  the  custody  of  the  law  and  subject 
only  to  the  orders  and  decrees  of  the  courts  of  the  United 
States  having  jurisdiction  thereof." 

§  2234.  Credits  Allowed  in  Government  Suits  against  In- 
dividuals. 

§  951,  R.  8.,  Comp.  Stat.  1901,  p.  695,  2  F.  8.  A.  41, 
Rose's  Code,  §  1411.  "In  suits  brought  by  the  United  States 
against  individuals,  no  claim  for  a  credit  shall  be  admitted, 
upon  trial,  except  such  as  appear  to  have  been  presented  to 
the  accounting  officers  of  the  Treasury,  for  their  examina- 
tion, and  to  have  been  by  them  disallowed,  in  whole  or  in 
part,  unless  it  is  proved  to  the  satisfaction  of  the  court  that 
the  defendant  is,  at  the  time  of  the  trial,  in  possession  of 
vouchers  not  before  in  his  power  to  procure,  and  that  he  was 
prevented  from  exhibiting  a  claim  for  such  credit  at  the 
Treasury  by  absence  from  the  United  States  or  by  some  un- 
avoidable accident." 

§  2235.  Credits  Allowed  in  Government  Suits  under  Post- 
al Laws. 

§  952,  R.  8.,  Comp.  Stat.  1901,  p.  695,  2  F.  8.  A.  44, 
Rose's  Code,  §  1397.  "No  claim  shall  be  allowed  upon  the 
trial  of  any  suit  for  delinquency  against  a  postmaster,  con- 
tractor, or  other  officer,  agent,  or  employee  of  the  Postoffice 
Department,  unless  the  same  has  been  presented  to  the  sixth 
auditor  and  by  him  disallowed,  in  whole  or  in  part,  or  un- 
less it  is  proved  to  the  satisfaction  of  the  court  that  the  de- 
fendant is,  at  the  time  of  trial,  in  possession  of  vouchers 
not  before  in  his  power  to  procure,  and  that  he  was  prevented 
from  exhibiting  to  the  said  auditor  a  claim  for  such  credit 
by  some  unavoidable  accident." 


600       MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2238 

§  2236.  Interest  in  Postal  Suits  on  Balances  Due. 

§  964,  E.  8.,  Camp.  Stat.  1901,  p.  700,  6  F.  8.  A.  12, 
Rose's  Code,  §  1410.  "In  all  suits  for  balances  due  to  the 
Postoffice  Department,  interest  thereon  shall  be  recovered, 
from  the  time  of  the  default,  at  the  rate  of  six  per  centum 
a  year." 

§  2237.  Sale  after  Condemnation  under  Revenue  Laws. 

§  939,  R.  8.,  Com  p.  Stat.  1901,  p.  691,  3  F.  8.  A.  98, 
Rose's  Code,  §§  1387,  15 IS.  "All  vessels,  goods,  wares,  or 
merchandise  which  shall  be  condemned  by  virtue  of  any 
law  respecting  the  revenue  from  imports  or  tonnage,  or  the 
registering  and  recording,  or  the  enrolling  and  licensing  of 
vessels,  and  for  which  bonds  shall  not  have  been  given  by  the 
claimant,  shall  be  sold  by  the  marshal  or  other  proper  officer 
of  the  court  in  which  condemnation  shall  be  had,  to  the 
highest  bidder,  at  public  auction,  by  order  of  such  court,  and 
at  such  place  as  the  court  may  appoint,  giving  at  least  fifteen 
days'  notice  (except  in  cases  of  perishable  merchandise)  in 
one  or  more  of  the  public  newspapers  of  the  place  where 
such  sale  shall  be ;  or  if  no  paper  is  published  in  such  place, 
in  one  or  more  of  the  papers  published  in  the  nearest  place 
thereto ;  for  which  advertising,  a  sum  not  exceeding  five 
dollars  shall  be  paid.  And  the  amount  of  such  sales,  deduct- 
ing all  proper  charges,  shall  be  paid  within  ten  days  after 
such  sale  by  the  person  selling  the  same  to  the  clerk  or  other 
proper  officer  of  the  court  directing  such  sale,  to  be  by  him, 
after  deducting  the  charges  allowed  by  the  court,  paid  to 
the  collector  of  the  district  in  which  such  seizure  or  forfeit- 
ure has  taken  place,  as  hereinbefore  directed."1 

§  2238.  Paying  Money  into  Court. 

§  995,  R.  S.,  Camp.  Stat.  1901,  p.  711,  5  F.  8.  A.  70, 
Rose's  Code,  §  821.  "All  moneys  paid  into  any  court  of  the 
United  States,  or  received  by  the  officers  thereof,  in  any 
cause  pending  or  adjudicated  in  such  court,  shall  be  forth- 
with deposited  with  the  Treasurer,  an  assistant  treasurer,  or 
a  designated  depositary  of  the  United  States,  in  the  name 
and  to  the  credit  of  such  court:  Provided,  That  nothing 
herein  shall  be  construed  to  prevent  the  delivery  of  any  such 
money  upon  security,  according  to  agreement  of  parties, 
imder  the  direction  of  the  court." 


§    2240  MISCELLANEOUS   PROVISIONS  601 

§  2239.  Withdrawal  of  Money  Paid  into  Court. 

§  996,  R.  S.,  as  Amended  Act  March  3,  1911,  ch.  224,  36 
Slat,  at  L.  1083,  1912  Supp.  F.  8.  A.  v.  1,  p.  273.  "No 
money  deposited  93  aforesaid  shall  be  withdrawn  except  by 
order  of  the  judge  or  judges  of  said  court,  respectively,  in 
terra  or  in  vacation,  to  be  signed  by  such  judge  or  judges, 
and  to  be  entered  and  certified  of  record  by  the  clerk;  and 
every  such  order  shall  state  the  cause  in  or  on  account  of 
which  it  is  drawn. 

"In  every  case  in  which  the  right  to  withdraw  money  so 
deposited  has  been  adjudicated  or  is  not  in  dispute  and  such 
money  has  remained  so  deposited  for  at  least  five  years  un- 
claimed by  the  person  entitled  thereto,  it  shall  be  the  duty 
of  the  judge  or  judges  of  said  court,  or  its  successor,  to  cause 
such  money  to  be  deposited  in  the  Treasury  of  the  United 
States,  in  the  name  and  to  the  credit  of  the  United  States: 
Provided,  That  any  person  or  persons  or  any  corporation  or 
company  entitled  to  any  such  money  may,  on  petition  to  the 
court  from  which  the  money  was  received,  or  its  successor, 
and  upon  notice  to  the  United  States  attorney  and  full  proof 
of  right  thereto,  obtain  an  order  of  court  directing  the  pay- 
ment of  such  money  to  the  claimant,  and  the  money  deposited 
as  aforesaid  shall  constitute  and  be  a  permanent  appropria- 
tion for  payments  in  obedience  to  such  orders,  and  this  act 
is  applicable  to  all  money  deposited  in  the  Treasury  of  the 
United  States  in  accordance  with  section  nine  hundred  and 
ninety-six,  Revised  Statutes  of  the  United  States,  as  amend- 
ed February  nineteenth,  eighteen  hundred  and  ninety-seven." 

§  2240.  Liens  on  Vessels  for  Repairs,  Supplies,  or  Other 
Necessaries — Procedure  in  Rem. 

§§  1-5  Act  June  23,  1910,  ch.  373,  36  Stat.  at  L.  604, 
605,  Comp.  St.  1911,  p.  1192,  1912  Supp.  F.  8.  A.  v.  1,  pp. 
352-3.  §  1.  "(Maritime  lien  on  vessels  for  repairs,  supplies, 
etc.)  That  any  person  furnishing  repairs,  supplies,  or  other 
necessaries,  including  the  use  of  dry  dock  or  marine  railway, 
to  a  vessel,  whether  foreign  or  domestic,  upon  the  order  of  the 
owner  or  owners  of  such  vessel,  or  of  a  person  by  him  or  them 
authorized,  shall  have  a  maritime  lien  on  the  vessel  which 
may  be  enforced  by  a  proceeding  in  rem,  and  it  shall  not  be 
necessary  to  allege  or  prove  that  credit  was  given  to  the  ves- 
sel." 

§  2.      "(Persons   presumed    to    have   authority.)      That 


602        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2241 

the  following  persons  shall  be  presumed  to  have  authority 
from  the  owner  or  owners  to  procure  repairs,  supplies,  and 
other  necessaries  for  the  vessel:  The  managing  owner,  ship's 
husband,  master,  or  any  person  to  whom  the  management  of 
the  vessel  at  the  port  of  supply  is  intrusted.  No  person  tor- 
tiously  or  unlawfully  in  possession  or  charge  of  a  vessel  shall 
have  authority  to  bind  the  vessel." 

§  3.  "(Charterers,  etc.)  That  the  officers  and  agents 
of  a  vessel  specified  in  section  two  shall  be  taken  to  include 
such  officers  and  agents  when  appointed  by  a  charterer,  by 
an  owner  pro  liac  vice,  or  by  an  agreed  purchaser  in  posses- 
sion of  the  vessel,  but  nothing  in  this  act  shall  be  construed 
to  confer  a  lien  when  the  furnisher  knew,  or  by  the  exercise 
of  reasonable  diligence  could  have  ascertained,  that  because 
of  the  terms  of  a  charter  party,  agreement  for  sale  of  the 
vessel,  or  for  any  other  reason,  the  person  ordering  the  re- 
pairs, supplies,  or  other  necessaries  was  without  authority  to 
bind  the  vessel  therefor." 

§  4.  "(Waiving  lien — other  proceedings  not  affected.) 
That  nothing  in  this  act  shall  be  construed  to  prevent  a 
furnisher  of  repairs,  supplies,  or  other  necessaries  from  waiv- 
ing his  right  to  a  lien  at  any  time,  by  agreement  or  otherwise, 
and  this  act  shall  not  be  construed  to  affect  the  rules  of  law 
now  existing  either  in  regard  to  the  right  to  proceed  against 
a  vessel  for  advances  or  in  regard  to  laches  in  the  enforce- 
ment of  liens  on  vessels,  or  in  regard  to  the  priority  or  rank 
of  liens,  or  in  regard  to  the  right  to  proceed  in  personam." 

§  5.  "(State  laws  superseded.)  That  this  act  shall 
supersede  the  provisions  of  all  state  statutes  conferring  liens 
on  vessels  in  so  far  as  the  same  purport  to  create  rights  of 
action  to  be  enforced  by  proceedings  in  rem  against  vessels 
for  repairs,  supplies,  and  other  necessaries." 

§  2241.  Oaths — Officers  Authorized  to  Administer  in  In- 
vestigations. 

§  183,  R.  S.,  as  Amended  by  Act  Feb.  13,  1911,  ch.  1+3, 
S6  Stat.  at  L.  898,  Comp.  St.  1911,  p.  29,  1912  Supp.  F.  S. 
A.  v.  1,  p.  327.  "Any  officer  or  clerk  of  any  of  the  depart- 
ments lawfully  detailed  to  investigate  frauds  on,  or  attempts 
to  defraud,  the  government,  or  any  irregularity  or  mis- 
conduct of  any  officer  or  agent  of  the  United  States,  and  any 
officer  of  the  Army,  Navy,  Marine  Corps,  or  Revenue-Cutter 
Service  detailed  to  conduct  an  investigation,  and  the  recorder, 


§    2244  MISCEI/LANEOUS   PROVISIONS  603 

and  if  there  be  none  the  presiding  officer,  of  any  military, 
naval,  or  revenue-cutter  service  board  appointed  for  such  pur- 
pose, shall  have  authority  to  administer  an  oath  to  any  wit- 
ness attending  to  testify  or  depose  in  the  course  of  such  in- 
vestigation." 

§  2242.  Seizing  and  Detaining  Letters,  etc.,  Carried  Con- 
trary to  Law. 

§  3990,  R.  S.,  Comp.  Stat.  1901,  p.  2115,  5  F.  8.  A.  909, 
Rose's  Code,  §  661.  "Any  special  agent  of  the  Postoffice 
Department,  collector,  or  other  customs  officer,  or  United 
States  marshal  or  his  deputy,  may  at  all  times  seize  all  letters 
and  bags,  packets  or  parcels,  containing  letters  which  are 
being  carried  contrary  to  law  on  board  any  vessel  or  on 
any  post  route,  and  convey  the  same  to  the  nearest  postoffice, 
or  may,  by  the  direction  of  the  Postmaster  General  or  Sec- 
retary of  the  Treasury,  detain  them  until  two  months  after 
the  final  determination  of  all  suits  and  proceedings  which 
may,  at  any  time  within  six  months  after  such  seizure,  be 
brought  against  any  person  for  sending  or  carrying  such 
letters." 

§  2243.  Same — Disposition  of  Seizures. 

§  3991,  R.  8.,  Comp.  Stat.  1901,  p.  2115,  5  F.  S.  A.  909, 
Rose's  Code,  §  661.  "Every  package  or  parcel  seized  by 
any  special  agent  of  the  Postoffice  Department,  collector,  or 
other  customs  officer,  or  United  States  marshal  or  his  depu- 
ties, in  which  any  letter  is  unlawfully  concealed,  shall  be 
forfeited  to  the  United  States,  and  the  same  proceedings 
may  be  had  to  enforce  the  forfeiture  as  are  authorized  in 
respect  to  goods,  wares,  and  merchandise  forfeited  for  vio- 
lation of  the  revenue  laws;  and  all  laws  for  the  benefit  and 
protection  of  customs  officers  making  seizures  for  violating 
revenue  laws  shall  apply  to  officers  making  seizures  for  vio- 
lating the  postal  laws." 

§  2244.  Mandamus  to  Compel  Obedience  to  Provisions  of 
Interstate  Commerce  Act  Respecting  Securing  Information 
Concerning  Stocks,  Bonds,  and  Other  Securities. 

Last  part  Act  March  1,  1918,  ch.  92,  37  Stat.  at  L.  703, 
amending  "An  Act  to  Regulate  Commerce"  by  adding  §  19a. 


604        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2244 

"That  the  district  courts  of  the  United  States  shall  have  ju- 
risdiction, upon  the  application  of  the  Attorney  General  of 
the  United  States  at  the  request  of  the  commission,  alleging 
a  failure  to  comply  with  or  a  violation  of  any  of  the  pro- 
visions of  this  section  by  any  common  carrier,  to  issue  a  writ 
or  writs  of  mandamus  commanding  such  common  carrier  to 
comply  with  the  provisions  of  this  section." 


CHAPTER  46. 

COURT  OF  CUSTOMS  APPEALS. 

Sec. 

2250.  In  General. 

2251.  General   Appraisers — Board   of. 

2252.  Court  of  Customs  Appeals — Organization — Rulea. 

2253.  Judges — Quorum. 

2254.  Clerks. 

2255.  Assistant   Clerks — Reports   of   Decisions. 

2256.  Marshal. 

2257.  Rooms  for  Holding  Court. 

2258.  Sessions. 

2259.  Jurisdiction. 

2260.  Time  for  Appeal  from  Board  of  General  Appraisers. 

2261.  Calendar. 

§  2250.  In  General.  The  court  of  customs  appeals  was  estab- 
lished in  1909  to  have  appellate  jurisdiction  over  matters  decided 
by  the  board  of  general  appraisers.  This  jurisdiction  was  exer- 
cised prior  to  1909  by  the  circuit  courts  of  the  United  States.  An 
appeal  lay  to  the  circuit  court  of  appeals  and  from  there  to  the 
Supreme  Court  of  the  United  States  in  cases  provided.  The  court 
of  customs  appeals  has  superseded  the  jurisdiction  of  the  circuit 
courts  in  these  matters,  and  its  judgment  is  final. 

§  2251.  General  Appraisers — Board  of.  There  are  nine 
general  appraisers  of  merchandise,  appointed  by  the  President, 
by  and  with  the  consent  of  the  Senate.  They  are  employed  ar 
such  ports  as  are  designated  by  the  Secretary  of  the  Treasury. 
It  is  the  duty  of  a  general  appraiser  to  revise  and  correct  the 
reports  of  the  assistant  appraisers.  He  also  must  reappraise  any 
merchandise  when  the  collector  deems  the  appraisement  too  low, 

605 


606        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2252 

or  when  the  importer,  owner,  agent,  or  consignee  of  the  mer- 
chandise is  dissatisfied  with  the  appraisement.  The  decision  of 
the  appraiser,  unless  objection  is  made  to  it,  is  final  and  con- 
clusive as  to  the  dutiable  value  of  such  merchandise  against  all 
parties  interested  therein. 

The  board  of  general  appraisers  consists  of  three  of  the  general 
appraisers,  which  are  on  duty  at  the  port  of  New  York.  If  the 
decision  of  the  general  appraiser  as  to  the  dutiable  value  of  the 
merchandise  is  unsatisfactory  to  the  importer,  owner,  consignee, 
or  agent,  or  to  the  collector,  and  notice  is  given  to  the  collector 
within  two  days  after  the  decision  of  the  general  appraiser,  the 
collector  must  transmit  the  invoice  and  all  the  papers  appertaining 
thereto,  to  the  board  of  general  appraisers,  at  New  York,  or  to  a 
board  of  three  general  appraisers,  at  that  port  or  any  other  port 
designated  by  the  Secretarv  of  the  Treasury,  who  shall  examine 

,0,  4.L.  U  '4.4.      J  J      J  'J  '4. 

the  case  thus  submitted,  and  decide  it. 

The  general  appraisers  are  judicial  officers  of  the  Treasury 
Department,  and  their  duty  is  confined  to  examining  the  case 
submitted  to  them,  and  the  single  question  involved  is  the  dutiable 
value  of  the  merchandise. 

The  general  board  of  nine  general  appraisers  establishes  the 
rules  of  each  of  the  three  general  boards.1  By  the  act  of  October 
8,  1913,  ch.  16,  section  III.,  pt.  subd.  N.,  38  Stat.  at  L.  — , 
the  determination  of  the  board  of  general  appraisers  as  to  pay- 
ment of  duties  shall  be  final  "except  in  cases  where  an  appeal 
shall  be  filed  in  the  United  States  court  of  customs  appeals  within 
the  time  and  manner  provided  by  law." 

§  2252.  Court  of  Customs  Appeals — Organization — Rules. 

§  194,  Judicial  Code,*  36  Stat.  at  L.  1144,  Comp.  St. 

1911,  p.  211,  1912  Supp.  F.  8.  A.  v.  1,  p.  213.     "The  said 

court  of  customs  appeals  shall  be  a  court  of  record,  with  i"u- 
A  i  .iroTMuT  j  ij  /  * 

1  Act  of  June  10,  1890,  26  Stat.  at  L.  136,  pars.  12,  14,  15.  Amended  July 
24,  1897,  amended  May  27,  1908.  35  Stat.  at  L.  403,  21  Op.  Atty-Gen.  85; 
United  States  v.  Loeb,  107  Fed.  692.  46  C.  C.  A.  562;  23  Op.  Atty-Gen.  377; 
Tn  re  Muser,  49  Fed.  831:  United  States  v.  Newhall,  91  Fed.  525;  United 
States  v.  Beebe,  103  Fed.  785:  117  Fed.  670. 

a  Drawn  from  §  28  of  the  Tariff  Act  of  August  5,  1909,  ch.  6,  36  Stat.  at  L. 
105,  1909  Supp.  F.  S.  A.  821. 


§  2254  COURT  OF  CUSTOMS  APPEALS  GOT 

risdiction  as  in  this  chapter  established  and  limited.  It  shall 
prescribe  the  form  and  style  of  its  seal,  and  the  form  of  its 
writs  and  other  process  and  procedure,  and  exercise  such 
powers  conferred  by  law  as  may  be  comformable  and  neces- 
sary to  the  exercise  of  its  jurisdiction.  It  shall  have  power  to 
establish  all  rules  and  regulations  for  the  conduct  of  the  busi- 
ness of  the  court,  and  as  may  be  needful  for  the  uniformity 
of  decisions  within  its  jurisdiction  as  conferred  by  law.  It 
shall  have  power  to  review  any  decision  or  matter  within  its 
jurisdiction,  and  may  affirm,  modify,  or  reverse  the  same  and 
remand  the  case  with  such  orders  as  may  seem  to  it  proper 
in  the  premises,  which  shall  be  executed  accordingly." 

§  2253.  Judges — Quorum. 

§  188,  Judicial  Code,*  36  Stat.  at  L.  1143,  Comp.  8t. 
1911,  p.  209,  1912  Supp.  F.  8.  A.  v.  1,  p.  211.  "There  shall 
be  a  United  States  court  of  customs  appeals,  which  shall  con- 
sist of  a  presiding  judge  and  four  associate  judges,  each  of 
whom  shall  be  appointed  by  the  President,  by  and  with  the 
advice  and  consent  of  the  Senate,  and  shall  receive  a  salary  of 
seven  thousand  dollars  a  year.  The  presiding  judge  shall  be 
so  designated  in  the  order  of  appointment  and  in  the  commis- 
sion issued  to  him  by  the  President ;  and  the  associate  judges 
shall  have  precedence  according  to  the  date  of  their  commis- 
sions. Any  three  members  of  said  court  shall  constitute  a 
quorum,  and  the  concurrence  of  three  members  shall  be  nec- 
essary to  any  decision  thereof.  In  case  of  a  vacancy  or  of  the 
temporary  inability  or  disqualification,  for  any  reason,  of 
one  or  two  of  the  judges  of  said  court,  the  President  may, 
upon  the  request  of  the  presiding  judge  of  said  court,  desig- 
nate any  qualified  United  States  circuit  or  district  judge  or 
judges  to  act  in  his  or  their  place ;  and  such  circuit  or  dis- 
trict judges  shall  be  duly  qualified  to  so  act." 

§  2254.  Clerks. 

§  191,  Judicial  Code,0  86  Stat.  at  L.  1144,  Comp.  St.- 
1911,  p.  210,  1912  Supp.  F.  8.  A.  v.  1,  p.  212.  "The  court 
shall  appoint  a  clerk,  whose  office  shall  be  in  the  city  of  Wash- 
ington, District  of  Columbia,  and  who  shall  perform  and 

•  t  11 

exercise  the  same  duties  and  powers  in  regard  to  all  matters 

*  Drawn  from  Act  of  February  25,  1910,  ch.  62,  36  Stat.  at  L.  214. 
e  Drawn  from  §  28  of  the  Tariff  Act  of  August  5,  1909,  ch.  6,  36  Stat.  at 
L.  105,  1909  Supp.  F.  S.  A.    821. 


608       MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2i'.v, 

within  the  jurisdiction  of  said  court  as  are  now  exercised 
and  performed  by  the  clerk  of  the  Supreme  Court  of  the 
United  States,  so  far  as  the  same  may  be  applicable.  The 
salary  of  the  clerk  shall  be  three  thousand  five  hundred  dol- 
lars per  annum,  which  sum  shall  be  in  full  payment  for  all 
service  rendered  by  such  clerk;  and  all  fees  of  any  kind 
whatever,  and  all  costs  shall  be  by  him  turned  into  the  Uniti-d 
States  Treasury.  Said  clerk  shall  not  be  appointed  by  the 
court  or  any  judge  thereof  as  a  commissioner,  master,  re- 
ceiver, or  referee.  The  costs  and  fees  in  the  said  court  shall 
be  fixed  and  established  by  said  court  in  a  table  of  fees 
to  be  adopted  and  approved  by  the  Supreme  Court  of  the 
United  States  within  four  months  after  the  organization  of 
said  court:  Provided,  That  the  costs  and  fees  so  fixed  shall 
not,  with  respect  to  any  item,  exceed  the  costs  and  fees 
charged  in  the  Supreme  Court  of  the  United  States ;  and  the 
same  shall  be  expended,  accounted  for,  and  paid  over  to  the 
Treasury  of  the  United  States." 

§  2255.  Assistant  Clerks— Reports  of  Decisions. 

§  192,  Judicial  Code*  36  Stat.  at  L.  1144,  Comp.  St. 
1911,  p.  210,  1912  Supp.  F.  8.  A.  v.  1,  p.  212.  "In  addition 
to  the  clerk,  the  court  may  appoint  an  assistant  clerk  at  a 
salary  of  two  thousand  dollars  per  annum,  five  stenographic 
clerks  at  a  salary  of  one  thousand  six  hundred  dollars  per 
annum  each,  one  stenographic  reporter  at  a  salary  of  two 
thousand  five  hundred  dollars  per  annum,  and  a  messenger 
at  a  salary  of  eight  hundred  and  forty  dollars  per  annum, 
all  payable  in  equal  monthly  instalments,  and  all  of  whom, 
including  the  clerk,  shall  hold  office  during  the  pleasure  of 
and  perform  such  duties  as  are  assigned  them  by  the  court. 
Said  reporter  shall  prepare  and  transmit  to  the  Sepretary 
of  the  Treasury  once  a  week  in  time  for  publication  in  the 
Treasury  Decisions  copies  of  all  decisions  rendered  to  that 
date  by  said  court,  and  prepare  and  transmit,  under  the 
direction  of  said  court,  at  least  once  a  year,  reports  of  said 
decisions  rendered  to  that  date,  constituting  a  volume,  which 
shall  be  printed  by  the  Treasury  Department  in  such  num- 
bers and  distributed  or  sold  in  such  manner  as  the  Secretary 
of  the  Treasury  shall  direct." 

a  Drawn  from  §  28  of  the  Tariff  Act  of  August  5,  1909,  ch.  6,  36  Stat.  at 
L.    105,    1909    Supp.   F.    S.   A.    821. 


§  2:257  COUKT  OF  CUSTOMS  APPEALS  609 

§  2256.  Marshal. 

§  190,  Judicial  Code*  36  Stat.  at  L.  1144,  Comp.  St. 
1911,  p.  210,  1912  Supp.  F.  8.  A.  v.  1,  p.  212.  "Said  court 
shall  have  the  services  of  a  marshal,  with  the  same  duties  and 
powers,  under  the  regulations  of  the  court,  as  are  now  pro- 
vided for  the  marshal  of  the  Supreme  Court  of  the  United 
States,  so  far  as  the  same  may  be  applicable.  Said  services 
within  the  District  of  Columbia  shall  be  performed  by  a  mar- 
shal to  be  appointed  by  and  to  hold  office  during  the  pleasure 
of  the  court,  who  shall  receive  a  salary  of  three  thousand 
dollars  per  annum.  Said  services  outside  of  the  District 
of  Columbia  shall  be  performed  by  the  United  States  mar- 
shals in  and  for  the  districts  where  sessions  of  said  court 
may  be  held;  and  to  this  end  said  marshals  shall  be  the 
marshals  of  said  court.  The  marshal  of  said  court,  for  the 
District  of  Columbia,  is  authorized  to  purchase,  under  the 
direction  of  the  presiding  judge,  such  books,  periodicals, 
and  stationery,  as  may  be  necessary  for  the  use  of  said  court ; 
and  such  expenditures  shall  be  allowed  and  paid  by  the 
Secretary  of  the  Treasury  upon  claim  duly  made  and  ap- 
proved by  said  presiding  judge." 

§  2257.  Rooms  for  Holding  Court 

§  198,  Judicial  Code,'  36  Stat.  at  L.  1144,  Comp.  St. 
1911,  p.  211,  1912  Supp.  F.  S.  A.  v.  1,  p.  213.  "The  mar- 
shal of  said  court  for  the  District  of  Columbia  and  the 
marshals  of  the  several  districts  in  which  said  court  of  cus- 
toms appeals  may  be  held  shall,  under  the  direction  of  the 
Attorney  General,  and  with  his  approval,  provide  such  rooms 
in  the  public  buildings  of  the  United  States  as  may  be  nec- 
essary for  said  court:  Provided,  That  in  case  proper  rooms 
cannot  be  provided  in  such  buildings,  then  the  said  marshals, 
with  the  approval  of  the  Attorney  General,  may,  from  time 
to  time,  lease  such  rooms  as  may  be  necessary  for  said  court. 
The  bailiffs  and  messengers  of  said  court  shall  be  allowed 
the  same  compensation  for  their  respective  services  as  are 
allowed  for  similar  services  in  the  existing  district  courts. 
In  no  case  shall  said  marshals  secure  other  rooms  than  those 
regularly  occupied  by  existing  district  courts,  or  other  public 

e  Taken  from  §  28  of  the  Tariff  Act  of  August  5,  1909,  ch.  6,  36  Stat  at  L. 
105.  1909  Supp.  F.  S.  A.  821. 

*  Taken  from  §  28,  of  the  Tariff  Act  of  August  5,  1909,  ch.  6,  36  Stat.  at  I,. 
105,  1909  Supp.  F.  S.  A.  821. 
Montg. — 39. 


610        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2259 

officers,  except  where  such  cannot,  by  reason  of  actual  occu- 
pancy or  use,  be  occupied  or  used  by  said  court  of  customs 
appeals." 

§  2258.  Sessions. 

§  189,  Judicial  Code*  86  Stat.  at  L.  1143,  Comp.  St. 
1911,  p.  209,  1912  Supp.  F.  8.  A.  v.  1,  p.  211.  "The  said 
court  of  customs  appeals  shall  always  be  open  for  the  trans- 
action of  business,  and  sessions  thereof  may,  in  the  dis- 
cretion of  the  court,  be  held  in  the  several  judicial  circuits 
and  at  such  places  as  said  court  may  from  time  to  time 
designate.  Any  judge  who,  in  pursuance  of  the  provisions 
of  this  chapter,  shall  attend  a  session  of  said  court  at  any 
place  other  than  the  city  of  Washington,  shall  be  paid,  upon 
his  written  and  itemized  certificate,  by  the  marshal  of  the 
district  in  which  the  court  shall  be  held,  his  actual  and 
necessary  expenses  incurred  for  travel  and  attendance,  and 
the  actual  and  necessary  expenses  of  one  stenographic  clerk 
who  may  accompany  him ;  and  such  payments  shall  be  al- 
lowed the  marshal  in  the  settlement  of  his  accounts  with  the 
United  States." 

§  2259.  Jurisdiction. 

§  195,  Judicial  Code,1'  86  Stat.  at  L.  1145,  Comp.  St. 
1911,  p.  211,  1912  Supp.  F.  S.  A.  v.  1,  p.  213.  "The  court 
of  customs  appeals  established  by  this  chapter  shall  exercise 
exclusive  appellate  jurisdiction  to  review  by  appeal,  as 
herein  provided,  final  decisions  by  a  board  of  general  ap- 
praisers in  all  cases  as  to  the  construction  of  the  law  and  the 
facts  respecting  the  classification  of  merchandise  and  the 
rate  of  duty  imposed  thereon  under  such  classification,  and 
the  fees  and  charges  connected  therewith,  and  all  appealable 
questions  as  to  the  jurisdiction  of  said  board,  and  all  appeal- 
able questions  as  to  the  laws  and  regulations  governing  the 
collection  of  the  customs  revenues;  and  the  judgments  and 
decrees  of  said  court  of  customs  appeals  shall  be  final  in  all 
such  cases." 

*  Taken  from  §  28  of  the  Tariff  Act  of  August  5.  1909,  ch.  6,  36  Stat  at  L. 
105,  1909  Supp.  F.  S.  A.  821. 

1»  Drawn  from  §  28  of  the  Tariff  Act  of  August  5,  1909,  ch.  6,  36  Stat.  at  L. 
105,  1909  Supp.  F.  S.  A.  821. 


§  2259  COUKT  OF  CUSTOMS  APPEALS  611 

§  197,  Judicial  Code,1  86  Stat.  at  L.  1145,  Comp.  St. 
1911,  p.  212, 1912  Supp.  F.  8.  A.  v.  1,  p.  214.  "Immediately 
upon  the  organization  of  the  court  of  customs  appeals,  all 
cases  within  the  jurisdiction  of  that  court  pending,  and  not 
submitted  for  decision  in  any  of  the  United  States  circuit 
courts  of  appeals,  United  States  circuit,  territorial,  or  district 
courts,  shall,  with  the  record  and  samples  therein,  be  certi- 
fied by  said  courts  to  said  court  of  customs  appeals  for  fur- 
ther proceedings  in  accordance  herewith:  Provided,  That 
where  orders  for  the  taking  of  further  testimony  before  a 
referee  have  been  made  in  any  of  such  cases,  the  taking  of 
such  testimony  shall  be  completed  before  such  certification." 

§  196,  Judicial  Code*  36  Stat.  at  L.  1145,  Comp.  St. 
1911,  p.  212,  1912  Supp.  F.  S.  A.  v.  1,  p.  214.  "After  the 
organization  of  said  court,  no  appeal  shall  be  taken  or  allowed 
from  any  board  of  United  States  general  appraisers  to  any 
other  court,  and  no  appellate  jurisdiction  shall  thereafter 
be  exercised  or  allowed  by  any  other  courts  in  cases  decided 
by  said  board  of  United  States  general  appraisers;  but  all 
appeals  allowed  by  law  from  such  board  of  general  apprais- 
ers shall  be  subject  to  review  only  in  the  court  of  customs 
appeals  hereby  established,  according  to  the  provisions  of  this 
chapter:  Provided,  That  nothing  in  this  chapter  shall  be 
deemed  to  deprive  the  Supreme  Court  of  the  United  States 
of  jurisdiction  to  hear  and  determine  all  customs  cases  which 
have  heretofore  been  certified  to  said  court  from  the  United 
States  circuit  courts  of  appeals  on  applications  for  writs  of 
certiorari  or  otherwise,  nor  to  review  by  writ  of  certiorari 
any  customs  case  heretofore  decided  or  now  pending  and 
hereafter  decided  by  any  circuit  court  of  appeals,  provided 
application  for  said  writ  be  made  within  six  months  after 
August  fifth,  nineteen  hundred  and  nine :  Provided  further, 
That  all  customs  cases  decided  by  a  circuit  or  district  court 
of  the  United  States  or  a  court  of  a  territory  of  the  United 
States  prior  to  said  date  above  mentioned,  and  which  have 
not  been  removed  from  said  courts  by  appeal  or  writ  of 
error,  and  all  such  cases  theretofore  submitted  for  decision 
in  said  courts  and  remaining  undecided,  may  be  reviewed 
on  appeal  at  the  instance  of  either  party  by  the  United 

1  Drawn  from  §  28  of  the  Tariff  Act  of  August  5,  1909,  ch.  6,  36  Stat.  at  L. 
105,  1909  Supp.  t\  S.  A.  821. 

J  Drawn  from  §  28  of  the  Tariff  Act  of  August  28,  1909,  ch.  6,  36  Stat.  at 
L.  105,  1909  Supp.  F.  S.  A.  821. 


612        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2261 

States  court  of  customs  appeals,  provided  such  appeal  be 
taken  within  one  year  from  the  date  of  the  entry  of  the 
order,  judgment,  or  decrees  sought  to  be  reviewed." 

§  2260.  Time  for  Appeal  from  Board  of  General  Ap- 
praisers. 

§  198,  Judicial  Code*  36  8 tat.  at  L.  111+6,  Comp.  St. 
1911,  p.  212,  1912  Supp.  F.  8.  A.  v.  1,  p.  21J+.  "If  the  im- 
porter, owner,  consignee,  or  agent  of  any  imported  merchan- 
dise, or  the  collector  or  Secretary  of  the  Treasury,  shall  be 
dissatisfied  with  the  decision  of  the  board  of  general  apprais- 
ers as  to  the  construction  of  the  law  and  the  facts  respecting 
the  classification  of  such  merchandise  and  the  rate  of  duty  im- 
posed thereon  under  such  classification,  or  with  any  other 
appealable  decision  of  said  board,  they,  or  either  of  them, 
may,  within  sixty  days  next  after  the  entry  of  such  decree 
or  judgment,  and  not  afterwards,  apply  to  the  court  of  cus- 
toms appeals  for  a  review  of  the  questions  of  law  and  fact 
involved  in  such  decision :  Provided,  That  in  Alaska  and  in 
the  insular  and  other  outside  possessions  of  the  United  States 
ninety  days  shall  be  allowed  for  making  such  application 
to  the  court  of  customs  appeals.  Such  application  shall  be 
made  by  filing  in  the  office  of  the  clerk  of  said  court  a  concise 
statement  of  errors  of  law  and  fact  complained  of;  and  a 
copy  of  such  statement  shall  be  served  on  the  collector,  or 
on  the  importer,  owner,  consignee,  or  agent,  as  the  case  may 
be.  Thereupon  the  court  shall  immediately  order  the  board 
of  general  appraisers  to  transmit  to  said  court  the  record 
and  evidence  taken  by  them,  together  with  the  certified  state- 
ment of  the  facts  involved  in  the  case  and  their  decision 
thereon ;  and  all  the  evidence  taken  by  and  before  said  board 
shall  be  competent  evidence  before  said  court  of  customs 
appeals.  The  decision  of  said  court  of  customs  appeals  shall 
be  final,  and  such  cause  shall  be  remanded  to  said  board  of 
general  appraisers  for  further  proceedings  to  be  taken  in 
pursuance  of  such  determination." 

§  2261.  Calendar. 

§  199,  Judicial  Code,1  36  Stat.  at  L.  1146,  Comp.  St. 
1911,  p.  213,  1912  Supp.  F.  S.  A.  v.  1,  p.  215.  "Imme- 

k  Drawn  from  §  28  of  the  Tariff  Act  of  August  5,  1909,  ch.  6,  36  Stat.  at 
L.  105,  1909  Supp.  F.  S.  A.  821. 

1  Drawn  from  §  28  of  the  Tariff  Act  of  August  5,  1909,  ch.  6,  36  Stat.  at 
L.  105,  1909  Supp.  F.  S.  A.  821. 


2261  COURT  OF  CUSTOMS  APPEALS  613 

diatelj  upon  receipt  of  any  record  transmitted  to  said  court 
for  determination  the  clerk  thereof  shall  place  the  same  upon 
the  calendar  for  hearing  and  submission ;  and  such  calendar 
shall  be  called  and  all  cases  thereupon  submitted,  except  for 
good  cause  shown,  at  least  once  every  sixty  days:  Provided, 
That  such  calendar  need  not  be  called  during  the  months  of 
July  and  August  of  any  year." 


CHAPTER  47. 

COURT  OF  CLAIMS. 

Sec. 

2300.  Organization — Judges. 

2301.  Same — Officers. 

2302.  Disqualification  to  Practise  before. 

2303.  Maintenance  of. 

2304.  Sessions — Quorum. 

2305.  Jurisdiction  of  Claims  against  the  Government — Exceptions. 

2306.  Jurisdiction — Restrictions    of — Foreign    and    Indian    Treaties — Claims 

Pending  Elsewhere. 

2307.  Jurisdiction — Claims  of  Aliens. 

2308.  Jurisdiction — Claims  for  Proceeds  of  Abandoned  Property. 

2309.  Jurisdiction — Claims  Referred  by  Departments. 

2310.  Jurisdiction — Claims  Referred  by  Congress. 

2311.  Jurisdiction — Settlement    Indebtedness   Due   Government.' 

2312.  Jurisdiction — Claims  by  Aided  Railroad  Companies  for  Transportation 

Furnished  to  the  Government. 

2313.  Jurisdiction  in  Patent  Cases  for  Unlicensed  Use  by  Government. 

2314.  Statute  of  Limitations. 

2315.  Rules  of  Practice. 

2316.  The  Petition. 

2317.  Defenses  by  Attorney  General. 

2318.  Insufficient  Petition. 

2319.  Traverse. 

2320.  Burden  of  Proof. 

2321.  Testimony  Taken  before  Commissioners.    • 

2322.  Examination  of  Claimant. 

2323.  Evidence  from  Departments  and  Congress. 

2324.  Witnesses. 

2325.  New   Trial. 

2326.  Interest. 

2327.  Costs. 

2328.  Effect  of  Judgment. 

2329.  Reports  of  Judgments  to  Congress  and  Executive  Officers. 

2330.  Payment  of  Judgments. 

2331.  Judgments   for  Set-off  or   Counterclaim — Enforcement  of. 

2332.  Appeals. 

614 


COURT  OF  CLAIMS  615 

§  2300.  Organization — Judges. 

§  136,  Judicial  Code,*  36  8 tat.  at  L.  1135,  Comp.  St. 
1911,  p.  196,  1912  Supp.  F.  8.  A.v.l,  p.  198.  "The  court 
of  claims,  established  by  the  act  of  February  twenty-fourth, 
eighteen  hundred  and  fifty-five,  shall  be  continued.  It  shall 
consist  of  a  chief  justice  and  four  judges,  who  shall  be  ap- 
pointed by  the  President,  by  and  with  the  advice  and  consent 
of  the  Senate,  and  hold  their  offices  during  good  behavior. 
Each  of  them  shall  take  an  oath  to  support  the  Constitution 
of  the  United  States,  and  to  discharge  faithfully  the  duties 
of  his  office.  The  chief  justice  shall  be  entitled  to  receive  an 
annual  salary  of  six  thousand  five  hundred  dollars,  and  each 
of  the  other  judges  an  annual  salary  of  six  thousand  dollars, 
payable  monthly,  from  the  Treasury." 

A  seal  is  provided  under  §  137,  Judicial  Code.b  (See  Ap- 
pendix. ) 

§  2301.  Same— Officers. 

Clerk,  assistant,  bailiff,  messenger. 

§  139,  Judicial  Code?  36  8 tat.  at  L.  1136,  Comp.  St. 
1911,  p.  197,  1912  Supp.  F.  S.  A.  v.  1,  p.  199.  "The  said 
court  shall  appoint  a  chief  clerk,  an  assistant  clerk,  if  deemed 
necessary,  a  bailiff,  and  a  chief  messenger.  The  clerks  shall 
take  an  oath  for  the  faithful  discharge  of  their  duties,  and 
shall  be  under  the  direction  of  the  court  in  the  performance 
thereof;  and  for  misconduct  or  incapacity  they  may  be  re- 
moved by  it  from  office;  but  the  court  shall  report  such  re- 
movals, with  the  cause  thereof,  to  Congress,  if  in  session,  or 
if  not,  at  the  next  session.  The  bailiff  shall  hold  his  office 
for  a  term  of  four  years,  unless  sooner  removed  by  the 
court  for  cause." 

The  salaries  of  these  officers  are  provided  in  §  140,  Judicial 
Code.  (See  Appendix.) 

«  Re-enacting  §  1049,  R.  S.,  Rose's  Code,  §§  222,  468,  Foster's  Fed.  Prac. 
(4th  ed.)  p.  1682,  Comp.  St.  1901,  p.  729,  2  F.  S.  A.  53,  which  section  is 
repealed  by  §  297,  Judicial  Code. 

1»  Re-enacting  §  1050,  R.  S.,  Rose's  Code,  §  225,  Comp.  St.  1901,  p.  729.  2 
F.  S.  A.  53.  In  general,  Taylor  v.  United  States,  45  Fed.  531. 

c  Re-enacting  §  1053,  R.  S.,  Rose's  Code.  §§  228,  562,  684,  Foster's  Fed 
Prac.  (4th  edJ  p.  1684,  Comp.  St.  1901,  p.  730,  2  F.  S.  A.  54,  which  section 
is  repealed  by  §  297,  Judicial  Code. 


616        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  230-t 

The  bond  of  assistant  clerk  is  provided  in  §  141,  Judicial 
Code.  (  See  Appendix. ) 

§  2302.  Disqualification  to  Practise  before. 

§  144,  Judicial  Code*  36  Stat.  at  L.  1136,  Comp.  SL 
1911,  p.  198,  1912  Supp.  F.  8.  A.  v.  1,  p.  200.  "Whoever, 
being  elected  or  appointed  a  Senator,  member  of  or  delegate 
to  Congress,  or  a  resident  commissioner,  shall,  after  his  elec- 
tion or  appointment,  and  either  before  or  after  he  has  quali- 
fied, and  during  his  continuance  in  office,  practise  in  the 
court  of  claims,  shall  be  fined  not  more  than  ten  thousand 
dollars  and  imprisoned  not  more  than  two  years;  and  shall, 
moreover,  thereafter  be  incapable  of  holding  any  office  of 
honor,  trust,  or  profit  under  the  government  of  the  United! 
States." 

§  2303.  Maintenance  of. 

§  142,  Judicial  Code*  36  Stat.  at  L.  1136,  Comp.  SL 
1911,  p.  197,  1912  Supp.  F.  S.  A.  v.  1,  p.  199.  "The  said 
clerk  shall  have  authority  when  he  has  given  bond  as  pro- 
vided in  the  preceding  section  (§  141  in  Appendix)  to  dis- 
burse, under  the  direction  of  the  court,  the  contingent  fund 
which  may  from  time  to  time  be  appropriated  for  its  use :  ant? 
his  accounts  shall  be  settled  by  the  proper  accounting  officers 
of  the  Treasury  in  the  same  Avay  as  the  accounts  of  other  dis- 
bursing agents  of  the  government  are  settled." 

§  2304.  Sessions — Quorum. 

§  138,  Judicial  Code,1  36  Stat.  at  L.  1136,  Comp.  St: 
1911,  p.  197,  1912  Supp.  F.  S.  A.  v.  1,  pp.  198-9.  "The 
court  of  claims  shall  hold  one  annual  session  at  the  city  of 
Washington,  beginning  on  the  first  Monday  in  December  and 
continuing  as  long  as  may  be  necessary  for  the  prompt  dis- 
position of  the  business  of  the  court.  Any  three  of  the  judges 

a  Re-enacting  §  1058,  R.  S.,  Rose's  Code,  §  498,  Comp.  St.  1901,  p.  731, 
2  F.  S.  A.  55,  which  section  is  repealed  by  §  297,  Judicial  Code.  Officer  of 
court,  compensation,  etc.,  Burton  v.  United  States,  202  U.  S.  344,  50  L.  ed. 
1057,  26  Sup.  Ct.  Rep.  688,  6  Ann.  Cas.  362. 

e  Re-enacting  §  3056,  R.  S.,  Rose's  Code,  §  594,  Comp.  St.  1901,  p.  731, 
2  F.  S.  A.  54,  which  section  is  repealed  by  §  297,  Judicial  Code. 

'Re-enacting  §  1052,  R.  S.,  Rose's  Code,  §  308,  Comp.  St.  1901,  p.  730, 
2  F.  S.  A.  54,  as  amended  by  18  Stat.  at  L.  468,  which  section  is  repealed 
by  §  297,  Judicial  Code.  As  to  quorum,  sessions,  Belknap  v.  United  States. 
150  U.  S.  588,  37  L.  ed.  1391,  14  Sup.  Ct.  Rep.  183. 


§    2305  COb'ET   OF  CLAIMS  GlT 

of  said  court  shall  constitute  a  quorum,  and  may  hold  a 
court  for  the  transaction  of  business:  Provided,  That  the 
concurrence  of  three  judges  shall  be  necessary  to  the  deci- 
sion of  any  case." 

§  2305.  Jurisdiction  of  Claims  against  the  Government — 
Exceptions. 

§  145,  Judicial  Code?  36  Stat.  at  L.  1136,  Comp.  St. 
1911,  p.  198,  1912  Supp.  F.  S.  A.  v.  1,  p.  200.  ''The  court 
of  claims  shall  have  jurisdiction  to  hear  and  determine  the 
following  matters : 

"First.  All  claims  (except  for  pensions)  founded  upon 
the  Constitution  of  the  United  States  or  any  law  of  Congress, 
upon  any  regulation  of  an  Executive  Department,  upon  any 
contract,  express  or  implied,  with  the  government  of  the 
United  States,  or  for  damages,  liquidated  or  unliquidated,  in 
cases  not  sounding  in  tort,  in  respect  of  which  claims  the 
party  would  be  entitled  to  redress  against  the  United  States 
'  either  in  a  court  of  law,  equity,  or  admiralty  if  the  United 
States  were  suable':  Provided,  however,  That  nothing  in  this 
section  shall  be  construed  as  giving  to  the  said  court  jurisdic- 
tion to  hear  and  determine  claims  growing  out  of  the  late 
Civil  War,  and  commonly  known  as  'war  claims/  or  to 
hear  and  determine  other  claims  which,  prior  to  March  third, 
eighteen  hundred  and  eighty-seven,  had  been  rejected  or  re- 
ported on  adversely  by  any  .court,  department,  or  commis- 
sion authorized  to  hear  and  determine  the  same. 

"Second.  All  set-offs,  counterclaims,  claims  for  damages, 
whether  liquidated  or  unliquidated,  or  other  demands  what- 
soever on  the  part  of  the  government  of  the  United  States 
against  any  claimant  against  the  government  in  said  court: 
Provided,  That  no  suit  against  the  government  of  the  United 
States,  brought  by  any  officer  of  the  United  States  to  recover 
fees  for  services  alleged  to  have  been  performed  for  the 
United  States,  shall  be  allowed  under  this  chapter  until  an 
account  for  said  fees  shall  have  been  rendered  and  finally 
acted  upon  as  required  by  law,  unless  the  proper  accounting 
officer  of  the  Treasury  fails  to  act  finally  thereon  within  six 
months  after  the  account  is  received  in  said  office. 

K  Including  §§  1059,  1069,  R.  S.,  Rose's  Code,  §§  231,  874,  Foster's  Fed.  Prac. 
(4th  ed.)  pp!  1685,  1694,  1703,  Comp.  St.  1901,  p.  752,  2  F.  S.  A.  55,  65.  and 
Act  of  March  3,  1887,  ch.  359,  see.  1,  24  Stat.  at  L.  505,  Comp.  St.  3901,  p. 
736,  2  F.  S.  A.  80,  all  of  which  are  repealed  by  §  297,  Judicial  Code.  As  to 
jurisdiction,  United  States  v.  Buffalo  Pitts  Co.  193  Fed.  905,  114  C.  C.  A.  119. 


618        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2307 

"Third.  The  claim  of  any  paymaster,  quartermaster, 
commissary  of  subsistence,  or  other  disbursing  officer  of  the 
United  States,  or  of  his  administrators  or  executors,  for 
relief  from  responsibility  on  account  of  loss  by  capture  or 
otherwise,  while  in  the  line  of  his  duty,  of  government 
funds,  vouchers,  records,  or  papers  in  his  charge,  and  for 
which  such  officer  was  and  is  held  responsible." 

§  2306.  Jurisdiction — Restrictions  of — Foreign  and  Indian 
Treaties — Claims  Pending  Elsewhere. 

Treaties  with  foreign  nations  and  Indian  tribes. 
§  153,  Judicial  Code*  36  Stat.  at  L.  1138,  Comp.  St. 
1911,  p.  201,  1912  Supp.  F.  S.  A.  v.  1,  p.  204.  "The  juris- 
diction of  the  said  court  shall  not  extend  to  any  claim  against 
the  government  not  pending  therein  on  December  first,  eigh- 
teen hundred  and  sixty-two,  growing  out  of  or  dependent  on 
any  treaty  stipulation  entered  into  with  foreign  nations  or 
with  the  Indian  tribes." 

Claims  pending  elsewhere. 

§  154,  Judicial  Code,1  36  Stat.  at  L.  1138,  Comp.  St. 
1911,  p.  201,  1912  Supp.  F.  S.  A.  v.  1,  p.  204.  k'^To  person 
shall  file  or  prosecute  in  the  court  of  claims,  or  in  the  Su- 
preme Court  on  appeal  therefrom,  any  claim  for  or  in  respect 
to  which  he  or  any  assignee  of  his  has  pending  in  any  other 
court  any  suit  or  process  against  any  person  who,  at  the 
time  when  the  cause  of  action  alleged  in  such  suit  or  process 
arose,  was,  in  respect  thereto,  acting  or  professing  to  act, 
mediately  or  immediately,  under  the  authority  of  the  United 
States." ' 

§  2307.  Jurisdiction — Claims   of  Aliens. 

§  155,  Judicial  Code,1  36  Stat.  at  L.  1139,  Comp.  St. 
1911,  p.  201,  1912  Supp.  F.  S.  A.  v.  1,  p.  204.  "Aliens  who 

h  Re-enacting  §  1066,  R.  S.,  Rose's  Code,  §  242,  Foster's  Fed.  Prac.  (4th  ed.) 
p.  1693,  Comp.  St.  p.  739,  2  F.  S.  A.  64,  which  section  is  repealed  by  §  297, 
Judicial  Code.  In  general,  Pam-To-Pee  v.  United  States,  148  U.  S.  691,  37 
L.  ed.  613,  13  Sup.  Ct.  Rep.  742. 

*  Re-enacting  §  1067,  R.  S.,  Rose's  Code,  §  246,  Comp.  St.  1901,  p.  739, 
2  F.  S.  A.  64,  which  section  is  repealed  by  §  297,  Judicial  Code.  In  general, 
United  States  v.  Louisiana,  123  U.  S.  32,  31  L.  ed.  69,  8  Sup.  Ct.  Rep.  17. 

J  Re-enacting  §  1068,  R.  S.,  Rose's  Code,  §  1454,  Foster's  Fed.  Prac.  (4th 
ed.)  pp.  1694,  1702.  Comp.  St.  1901,  p.  740,  2  F.  S.  A.  64,  which  section  is  re- 
pealed by  §  297,  Judicial  Code.  Aliens,  United  States  v.  Wiachester  &; 
Potomac 'Railroad  Co.  163  U.  S.  244,  41  L.  ed.  145,  16  Sup.  Ct.  Rep.  993. 


§    2309  COURT  OF  CLAIMS  619 

are  citizens  or  subjects  of  any  government  which  accords  to 
citizens  of  the  United  States  the  right  to  prosecute  claims 
against  such  government  in  its  courts,  shall  have  the 
privilege  of  prosecuting  claims  against  the  United  States 
in  the  court  of  claims,  whereof  such  court,  by  reason  of  their 
subject-matter  and  character,  might  take  jurisdiction." 

§  2308.  Jurisdiction — Claims  for  Proceeds  of  Abandoned 
Property. 

§  162,  Judicial  Code*  36  Stat.  at  L.  1139,  Comp.  St. 
1911,  p.  203,  1912  Supp.  F.  8.  A.  v.  1,  p.  205.  "The  court 
of  claims  shall  have  jurisdiction  to  hear  and  determine  the 
claims  of  those  whose  property  was  taken  subsequent  to 
June  the  first,  eighteen  hundred  and  sixty-five,  under  the 
provisions  of  the  act  of  Congress  approved  March  twelfth, 
eighteen  hundred  and  sixty-three,  entitled,  'An  Act  to  Pro- 
vide for  the  Collection  of  Abandoned  Property  and  for  the 
Prevention  of  Frauds  in  Insurrectionary  Districts  within 
the  United  States/  and  acts  amendatory  thereof,  where  the 
property  so  taken  was  sold  and  the  net  proceeds  thereof  were 
placed  in  the  Treasury  of  the  United  States;  and  the  Sec- 
retary of  the  Treasury  shall  return  said  net  proceeds  to  the 
owners  thereof,  on  the  judgment  of  said  court,  and  full 
jurisdiction  is  given  to  said  court  to  adjudge  said  claims, 
any  statutes  of  limitations  to  the  contrary  notwithstanding." 

§  2309.  Jurisdiction — Claims  Referred  by  Departments. 

§  148,  Judicial  Code,1  36  Stat.  at  L.  1137,  Comp.  St. 
1911,  p.  199,  1912  Supp.  F.  S.  A.  v.  1,  p.  202.  "When 
any  claim  or  matter  is  pending  in  any  of  the  executive  de- 
partments which  involves  controverted  questions  of  fact  or 
law,  the  head  of  such  department  may  transmit  the  same, 
with  the  vouchers,  papers,  documents,  and  proofs  pertaining 
thereto,  to  the  court  of  claims,  and  the  same  shall  be  there 

k  Drawn  from  §  1059,  R.  S.,  Rose's  Code,  §  233,  Foster's  Fed.  Prac.  (4th  ed.) 
pp.  1685,  1694,  Comp.  St.  1901,  p.  735,  2  F.  S.  A.  60,  which  section  is  re- 
pealed by  §  297,  Judicial  Code.  In  general,  Austin  v.  United  States,  155  U. 
S.  417,  39  L.  ed.  206,  15  Sup.  Ct.  Rep.  167. 

1  Drawn  from  §  1063,  R.  S.,  Rose's  Code,  §  236,  Foster's  Fed.  Prac.  (4th  ed.) 
pp.  1400,  1687,  Comp.  St.  1901,  p.  738,  2  F.  S.  A.  62,  §§  12  &  13  of  act  of 
March  3,  1887,  ch.  359,  24  Stat.  at  L.  507,  Rose's  Code,  §§  237,  239,  Comp. 
St.  1901,  p.  748,  2  F.  S.  A.  86,  and  §  2  of  act  of  March  3,  1883,  ch.  116,  22 
Stat,  at  L.  485,  Rose's  Code,  §  238,  2  F.  S.  A.  77,  Comp.  St.  1901,  p.  756,  all 
of  which  are  repealed  by  §  297,  Judicial  Code.  In  general,  United  States 
v.  Barlow,  184  U.  S.  123,  46  L.  ed.  463,  22  Sup.  Ct.  Rep.  468. 


620        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2310 

proceeded  in  under  such  rules  as  the  court  may  adopt.  When 
the  facts  and  conclusions  of  law  shall  have  been  found,  the 
court  shall  report  its  findings  to  the  department  by  which 
it  was  transmitted  for  its  guidance  and  action:  Provided, 
however,  That  it  shall  have  been  transmitted  with  the  con- 
sent of  the  claimant,  or  if  it  shall  appear  to  the  satisfaction 
of  the  court  upon  the  facts  established,  that  under  existing 
laws  or  the  provisions  of  this  chapter  it  has  jurisdiction  to 
render  judgment  or  decree  thereon,  it  shall  proceed  to  do 
so,  in  the  latter  case  giving  to  either  party  such  further  op- 
portunity for  hearing  as  in  its  judgment  justice  shall  re- 
quire, and  shall  report  its  findings  therein  to  the  depart- 
ment by  which  the  same  was  referred  to  said  court.  The 
Secretary  of  the  Treasury  may,  upon  the  certificate  of  any 
auditor,  or  of  the  Comptroller  of  the  Treasury,  direct  any 
claim  or  matter,  of  which,  by  reason  of  the  subject-matter  or 
character,  the  said  court  might  under  existing  laws,  take 
jurisdiction  on  the  voluntary  action  of  the  claimant,  to  be 
transmitted,  with  all  the  vouchers,  papers,  documents,  and 
proofs  pertaining  thereto,  to  the  said  court  for  trial  and  ad- 
judication." 

§  149,  Judicial  Code,™  36  Stat.  at  L.  1138,  Comp.  St. 
1911,  p.  200,  1912  Supp.  F.  S.  A.  v.  1,  p.  202.  "All  cases 
transmitted  by  the  head  of  any  department,  or  upon  the  cer- 
tificate of  any  auditor,  or  of  the  Comptroller  of  the  Treasury, 
according  to  the  provisions  of  the  preceding  section,  shall 
be  proceeded  in  as  other  cases  pending  in  the  court  of 
claims,  and  shall,  in  all  respects,  be  subject  to  the  same  rules 
and  regulations." 

§  2310.  Jurisdiction — Claims  Referred  by  Congress. 

§  151,  Judicial  Code,"  36  Stat.  at  L.  1138,  Comp.  St. 
1911,  p.  200,  1912  Supp.  F.  S.  A.  v.  1,  p.  $02.  "When- 
ever any  bill,  except  for  a  pension,  is  pending  in  either  House 
of  Congress  providing  for  the  payment  of  a  claim  against 

m  Re-enacting  §  1064,  R.  S.,  Rose's  Code,  §  1452,  Foster's  Fed.  Prac.  (4th 
ed.)  p.  1687,  Comp.  St.  1901,  p.  738,  2  F.  S.  A.  63,  which  section  is  repealed 
by  §  297,  Judicial  Code.  Procedure  in  referred  cases,  United  States  v.  Xe\v 
York,  160  U.  S.  598,  40  L.  ed.  551,  16  Sup.  Ct.  Rep.  402. 

«  Re-enacting  act  of  March  3.  1887,  ch.  359,  §  14,  24  Stat.  at  L.  507,  Rose's 
Code,  §  240,  Foster's  Fed.  Prac.  (4th  ed.)  p.  287,  Comp.  St.  1901.  p.  757.  2 
F.  S.  A.  87,  as  amended  by  act  of  June  25,  1910,  36  Stat.  at  L.  409,  which  is 
repealed  by  §  297,  Judicial  Code. 


§    2311  COURT  OF  CLAIMS  621 

the  United  States,  legal  or  equitable,  or  for  a  grant,  gift, 
or  bounty  to  any  person,  the  House  in  which  such  bill  is 
pending  may,  for  the  investigation  and  determination  of 
facts,  refer  the  same  to  the  court  of  claims,  which  shall  pro- 
ceed with  the  same  in  accordance  with  such  rules  as  it  may 
adopt,  and  report  to  such  House  the  facts  in  the  case  and  the 
amount,  where  the  same  can  be  liquidated,  including  any 
facts  bearing  upon  the  question  whether  there  has  been  delay 
or  laches  in  presenting  such  claim  or  applying  for  such 
grant,  gift,  or  bounty,  and  any  facts  bearing  upon  the  ques- 
tion whether  the  bar  of  any  statute  of  limitation  should  be 
removed  or  which  shall  be  claimed  to  excuse  the  claimant 
for  not  having  resorted  to  any  established  legal  remedy,  to- 
gether with  such  conclusions  as  shall  be  sufficient  to  inform 
Congress  of  the  nature  and  character  of  the  demand,  either 
as  a  claim,  legal  or  equitable,  or  as  a  gratuity  against  the 
United  States,  and  the  amount,  if  any,  legally  or  equitably 
due  from  the  United  States  to  the  claimant:  Provided, 
however,  That  if  it  shall  appear  to  the  satisfaction  of  the 
court  upon  the  facts  established,  that  under  existing  laws 
or  the  provisions  of  this  chapter,  the  subject-matter  of  the 
bill  is  such  that  it  has  jurisdiction  to  render  judgment  or 
decree  thereon,  it  shall  proceed  to  do  so,  giving  to  either 
party  such  further  opportunity  for  hearing  as  in  its  judg- 
ment justice  shall  require,  and  it  shall  report  its  proceedings 
therein  to  the  House  of  Congress  by  which  the  same  was 
referred  to  said  court." 

§  2311.  Jurisdiction — Settlement  Indebtedness  Due  Gov- 
ernment. 

§  180,  Judicial  Code,0  36  Stalk,  at  L.  1141,  Comp.  Si. 
1911,  p.  206,  1912  Supp.  F.  8.  A.  v.  1,  p.  208.  "Whenever 
any  person  shall  present  his  petition  to  the  court  of  claims, 
alleging  that  he  is  or  has  been  indebted  to  the  United  States 
as  an  officer  or  agent  thereof,  or  by  virtue  of  any  contract 
therewith,  or  that  he  is  the  guarantor,  or  surety,  or  personal 
representative  of  any  officer  or  agent  or  contractor  so  in- 
debted, or  that  he  or  the  person  for  whom  he  is  such  surety, 
guarantor,  or  personal  representative  has  held  any  office  or 

o  Drawn  from  §§  3  and  8  of  the  Tucker  Act  of  March  3,  1887,  ch.  350, 
Rose's  Code,  §§  139,  242,  1481,  1486,  Comp.  St.  1901,  pp.  754,  755,  2  F.  S.  A. 
83,  85,  which  sections  are  repealed  by  §  297,  Judicial  Code. 

Gierding  v.  United  States,  26  Ct,  01.  319. 


622        MONTGOMERY'S  MANUAL  OF  FEDERAL  PKOCEUI  UK 

agency  under  the  United  States,  or  entered  into  any  con- 
tract therewith,  under  which  it  may  be  or  has  been  claimed 
that  an  indebtedness  to  the  United  States  had  arisen  and 
exists,  and  that  he  or  the  person  he  represents  has  applied 
to  the  proper  department  of  the  government  requesting  that 
the  account  of  such  office,  agency,  or  indebtedness  may  be  ad- 
justed and  settled,  and  that  three  years  have  elapsed  from  the 
date  of  such  application,  and  said  account  still  remains  un- 
settled and  unadjusted,  and  that  no  suit  upon  the  same  has 
been  brought  by  the  United  States,  said  court  shall,  due  no- 
tice first  being  given  to  the  head  of  said  department  and  to 
the  Attorney  General  of  the  United  States,  proceed  to  hear 
the  parties  and  to  ascertain  the  amount,  if  any,  due  the 
United  States  on  said  account.  The  Attorney  General  shall 
represent  the  United  States  at  the  hearing  of  said  cause. 
The  court  may  postpone  the  same  from  time  to  time  when- 
ever justice  shall  require.  The  judgment  of  said  court  or 
of  the  Supreme  Court  of  the  United  States,  to  which  an  ap- 
peal shall  lie,  as  in  other  cases,  as  to  the  amount  due,  shall 
be  binding  and  conclusive  upon  the  parties.  The  payment 
of  such  amount  so  found  due  by  the  court  shall  discharge 
such  obligation.  An  action  shall  accrue  to  the  United  States 
against  such  principal  or  surety  or  representative  to  re- 
cover the  amount  so  found  due,  which  may  be  brought  at  any 
time  within  three  years  after  the  final  judgment  of  said 
court;  and  unless  suit  shall  be  brought  within  said  time, 
such  claim  and  the  claim  on  the  original  indebtedness  shall 
be  forever  barred.  The  provisions  of  section  one  hundred 
and  sixty-six  (§  2322  infra)  shall  apply  to  cases  under  this 
section." 

§  2312.  Jurisdiction — Claims  by  Aided  Railroad  Compa- 
nies for  Transportation  Furnished  to  the  Government. 

§  5261,  R.  8.,  Comp.  Stat.  1901,  p.  3526,  6  F.  S.  A.  747; 
Roses  Code,  §  244-  "Any  railroad  company  to  which  bonds 
have  been  issued,  on  which  the  interest  has  not  been  paid 
may  bring  suit  in  the  court  of  claims  to  recover  the  price  of 
such  freight  and  transportation,  and  in  such  suit  the  right 
of  such  company  to  recover  the  same  upon  the  law  and  the 
facts  of  the  case  shall  be  determined,  and  also  the  rights  of 
the  United  States  upon  the  merits  of  all  the  points  presented 
by  it  in  answer  thereto  by  them ;  and  either  party  to  such 


§    2314  COURT   OF   CLAIMS  623 

suit  may  appeal  to  the  Supreme  Court;  and  both  said  courts 
shall  give  such  cause  or  causes  precedence  of  all  other  busi- 
ness." 

§  2313.  Jurisdiction  in  Patent  Cases  for  Unlicensed  Use 
by  Government. 

Act  June  25,  1910,  ch.  423,  36  8 tat.  at  L.  p.  851,  Comp. 
St.  1911,  p.  1457,  1912  Supp.  F.  8.  A.  v.  1,  p.  286.  "That 
whenever  an  invention  described  in  and  covered  by  a  patent 
of  the  United  States  shall  hereafter  be  used  by  the  United 
States  without  license  of  the  owner  thereof  or  lawful  right 
to  use  the  same,  such  owner  may  recover  reasonable  compen- 
sation for  such  use  by  suit  in  the  court  of  claims :  Provided, 
however,  That  said  court  of  claims  shall  not  entertain  a  suit 
or  award  compensation  under  the  provisions  of  this  act 
where  the  claim  for  compensation  is  based  on  the  use  by  the 
United  States  of  any  article  heretofore  owned,  leased,  used 
by,  or  in  the  possession  of  the  United  States :  Provided  fur- 
ther, That  in  any  such  suit  the  United  States  may  avail 
itself  of  any  and  all  defenses,  general  or  special,  which  might 
be  pleaded  by  a  defendant  in  an  action  for  infringement, 
as  set  forth  in  title  sixty  of  the  Revised  Statutes,  or  other- 
wise: And  provided  further,  That  the  benefits  of  this  act 
shall  not  inure  to  any  patentee  who,  when  he  makes  such 
claim,  is  in  the  employment  or  service  of  the  government  of 
the  United  States ;  or  the  assignee  of  any  such  patentee ;  nor 
shall  this  act  apply  to  any  device  discovered  or  invented  by 
such  employee  during  the  time  of  his  employment  or  serv- 
ice." 

§  2314.  Statute  of  Limitations. 

§  156,  Judicial  Code,9  36  8tat.  at  L.  1139,  Comp.  St. 
1911,  p.  202,  1912  Supp.  F.  S.  A.  v.  1,  p.  204.  "Every 
claim  against  the  United  States  cognizable  by  the  court  of 
claims  shall  be  forever  barred  unless  the  petition  setting 
forth  a  statement  thereof  is  filed  in  the  court,  or  transmitted 
to  it  by  the  secretary  of  the  Senate  or  the  clerk  of  the 
House  of  Representatives,  as  provided  by  law,  within  six 
years  after  the  claim  first  accrues :  Provided,  That  the  claims 
of  married  women,  first  accrued  during  marriage,  of  per- 

P  For  Annotation  of  this  §   156,  Judicial  Code,  see  footnote  »,  ante,  our 
§  403. 


624        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2316 

sons  under  the  age  of  twenty-one  years,  first  accrued  during 
minority,  and  of  idiots,  lunatics,  insane  persons,  and  per- 
sons beyond  the  seas  at  the  time  the  claim  accrued,  entitled 
to  the  claim,  shall  not  be  barred  if  the  petition  be  filed  in 
the  court  or  transmitted,  as  aforesaid,  within  three  years 
after  the  disability  has  ceased ;  but  no  other  disability  than 
those  enumerated  shall  prevent  any  claim  from  being  barred, 
nor  shall  any  of  the  said  disabilities  operate  cumulatively." 

§  2315.  Rules  of  Practice. 

§  151,  Judicial  Code,"  36  Sfat.  at  L.  1139,  Comp.  St. 
1911,  p.  202,  1912  Supp.  F.  8.  A.  v,  1,  p.  204.  "The  said 
court  shall  have  power  to  establish  rules  for  its  government 
and  for  the  regulation  of  practice  therein,  and  it  may 
punish  for  contempt  in  the  manner  prescribed  by  the  com- 
mon law,  may  appoint  commissioners,  and  may  exercise 
such  powers  as  are  necessary  to  carry  into  effect  the  powers 
granted  to  it  by  law." 

The  court  of  claims  has  established  elaborate  rules  for  their 
practice.  There  is  not  space  to  include  them  in  this  work.  They 
may  be  obtained  by  writing  the  clerk  at  Washington,  D.  C. 

§  2316.  The  Petition. 

§  159,  Judicial  Code?  36  Stat.  at  L.  1139,  Comp.  Si. 
1911,  p.  202,  1912  Supp.  F.  8.  A.  v.  1,  p.  204.  "The  claim- 
ant shall  in  all  cases  fully  set  forth  in  his  petition  the  claim, 
the  action  thereon  in  Congress  or  by  any  of  the  departments, 
if  such  action  has  been  had,  what  persons  are  owners  thereof 
or  interested  therein,  when  and  upon  what  consideration  such 
persons  became  so  interested;  that  no  assignment  or  trans- 
fer of  said  claim  or  of  any  part  thereof  or  interest  therein 
has  been  made,  except  as  stated  in  the  petition ;  that  said 
claimant  is  justly  entitled  to  the  amount  therein  claimed 
from  the  United  States  after  allowing  all  just  credits  and 
offsets;  that  the  claimant  and,  where  the  claim  has  been 

a  Re-enacting  §  1070,  R.  S.,  Rose's  Code,  §§  224,  808,  Comp.  St.  1901, 
p.  740,  2  F.  S.  A.  67,  which  section  is  repealed  by  §  297,  Judicial  Code. 
Practice,  Intermingled  Cotton  Cases,  92  U.  S.  651,'  23  L.  ed.  756. 

r  Re-enacting  §  1072,  R.  S..  Rose's  Code,  §  1455,  Foster's  Fed.  Prac.  (4th 
ed.)  pp.  286,  1705,  Corap.  St.  1901,  p.  741,  2  F.  S.  A.  67,  which  section  is 
repealed  by  §  297,  Judicial  Code.  In  general,  United  States  v.  Louisiana, 
123  U.  S.  32,  31  L.  ed.  69,  8  Sup.  Ct.  Rep.  17. 


§  2317  COURT  OF  CLAIMS  625 

assigned,  the  original  and  every  prior  owner  thereof,  if  a 
citizen,  has  at  all  times  borne  true  allegiance  to  the  govern- 
ment of  the  United  States,  and,  whether  a  citizen  or  not, 
has  not  in  any  way  voluntarily  aided,  abetted,  or  given 
encouragement  to  rebellion  against  the  said  government, 
and  that  he  believes  the  facts  as  stated  in  the  said  petition  to 
be  true.  The  said  petition  shall  be  verified  by  the  affida- 
vit of  the  claimant,  his  agent  or  attorney." 

§  158,  Judicial  Code*  36  8 tat.  at  L.  1139,  Comp.  St. 
1911,  p.  202,  1912  Supp.  F.  S.  A.  v.  1,  p.  204.  "The 
judges  and  clerks  of  said  court  may  administer  oaths  and 
affirmations,  take  acknowledgments  of  instruments  in  writ- 
ing, and  give  certificates  of  the  same." 

§  184,  Judicial  Code*  36  Stat.  at  L.  1142,  Comp.  St. 
1911,  p.  207,  1912  Supp.  F.  8.  A.  v.  1,  p.  210.  "In  any 
case  of  a  claim  for  supplies  or  stores  taken  by  or  furnished 
to  any  part  of  the  military  or  naval  forces  of  the  United 
States  for  their  use  during  the  late  Civil  War,  the  petition 
shall  aver  that  the  person  who  furnished  such  supplies  or 
stores,  or  from  whom  such  supplies  or  stores  were  taken, 
did  not  give  any  aid  or  comfort  to  said  rebellion,  but  was 
throughout  that  war  loyal  to  the  government  of  the  United 
States,  and  the  fact  of  such  loyalty  shall  be  a  jurisdictional 
fact;  and  unless  the  said  court  shall,  on  a  preliminary  in- 
quiry, find  that  the  person  who  furnished  such  supplies 
or  stores,  or  from  whom  the  same  were  taken  as  aforesaid, 
was  loyal  to  the  government  of  the  United  States  through- 
out said  war,  the  court  shall  not  have  jurisdiction  of  such 
cause,  and  the  same  shall,  without  further  proceedings,  be 
dismissed." 

§  2317.  Defenses  by  Attorney  General. 

§  185,  Judicial  Code,™  36  Stat.  at  L.  1142,  Comp.  St. 

•  Re-enacting  §  1071,  R.  S.,  Rose's  Code,  §  223,  Foster's  Fed.  Prac.  (4th  ed.) 
p.  1718,  Comp.  St.  1901,  p.  741,  2  F.  S.  A.  67,  which  section  is  repealed  by  § 
297,  Judicial  Code. 

t  Re-enacting  §  4  of  Bowman  Act  of  March  3,  1883,  ch.  116,  Rose's  Code, 
§  1476,  Foster's  Fed.  Prac.  (4th  ed.)  p.p.  1688,  1689,  22  Stat.  at  L.  485,  Comp. 
St.  1901,  p.  749,  2  F.  S.  A.  79,  which  section  is  repealed  by  §  207,  Judicial 
Code.  For  date  when  war  ceased,  see  Carter  v.  United  States,  23  Ct.  Cl.  326 ; 
Lynch  v.  United  States,  31  Ct.  Cl.  62:  Austin  v.  United  States,  155  U.  S. 
417,  39  L.  ed.  206,  15  Sup.  Ct.  Rep.  167;  Loyalty,  Austin  v.  United  States, 
155  U.  S.  417,  39  L.  ed.  206,  15  Sup.  Ct.  Rep*  167. 

u  Drawn  from  §  5  of  the  Bowman  Act  of  March  3,  1883,  ch.  116,  Rose's 
Montg. — 40. 


626        MONTGOMERY'S  MANUAL,  OF  FEDERAL  PROCEDURE     §  2317 

1911,  p.  208,  1912  Supp.  F.  S.  A.  v.  1,  p.  210.  "The 
Attorney  General,  or  his  assistants  under  his  direction,  shall 
appear  for  the  defense  and  protection  of  the  interests  of  the 
United  States  in  all  cases  which  may  be  transmitted  to  the 
court  of  claims  under  the  provisions  of  this  chapter,  with 
the  same  power  to  interpose  counterclaims,  offsets,  defenses 
for  fraud  practised  or  attempted  to  be  practised  by  claim- 
ants, and  other  defenses,  in  like  manner  as  he  is  required  to 
defend  the  United  States  in  said  court." 

Claiming  more  than  due  under  Act  June  16,  1874. 
§  173  f  Judicial  Code?  36  Sled,  at  L.  1141,  Comp.  St. 
19 11,  p.  205,  1912  Supp.  F.  S.  A.  v.  1,  p.  207.  "No  claim 
shall  be  allowed  by  the  accounting  officers  under  the  pro- 
visions of  the  act  of  Congress  approved  June  sixteenth, 
eighteen  hundred  and  seventy-four,  or  by  the  court  of  claims, 
or  by  Congress,  to  any  person  where  such  claimant,  or  those 
under  whom  he  claims,  shall  wilfully,  knowingly,  and  with 
intent  to  defraud  the  United  States,  have  claimed  more  than 
was  justly  due  in  respect  of  such  claim,  or  presented  any 
false  evidence  to  Congress,  or  to  any  department  or  court,  in 
support  thereof." 

Corrupt  or  fraudulent  practices. 

§  172,  Judicial  Code™  36  8 tat.  at  L.  11 41,  Comp.  St. 
1911,  p.  205,  1912  Supp.  F.  S.  A.  v.  1,  p.  207.  "Any  per- 
son who  corruptly  practises  or  attempts  to  practise  any 
fraud  against  the  United  States  in  the  proof,  statement,  es- 
tablishment, or  allowance  of  any  claim  or  of  any  part  of  any 
claim  against  the  United  States,  shall  ipso  facto  forfeit  the 
same  to  the  government ;  and  it  shall  be  the  duty  of  the  court 
of  claims,  in  such  cases,  to  find  specifically  that  such  fraud 
was  practised  or  attempted  to  be  practised,  and  thereupon  to 
give  judgment  that  such  claim  is  forfeited  to  the  government, 
and  that  the  claimant  be  forever  barred  from  prosecuting  the 
same." 

Code,  §  1477,  22  Stat.  at  L.  486,  Comp.  St.  1901,  p.  749,  2  F.  S.  A.  79,  which 
section  is  repealed  by  §  297,  Judicial  Code. 

v  Re-enacting  §  2  of  act  of  April  30,  1878,  ch.  77,  20  Stat.  at  L.  524,  Comp. 
St.  1901,  p.  178,  2  F.  S.  A.  19. 

Fraud  in  part  of  claim  is  ground  for  forfeiture.  Furray  v.  United  States, 
34  Ct.  Cl.  m. 

For  form  of  judgment  of  forfeiture  see,  Bellocque.  etc.,  Co.'s  Case,  16  Ct. 
Cl.  620. 

w  For  Annotation  of  this  §  172,  Judicial  Code,  see  footnote  *  ante,  our 
§  2012. 


§  2321  COURT  OF  CLAIMS  627 

§  2318.  Insufficient  Petition. 

§  165,  Judicial  Code*  36  Stat.  at  L  1140,  Comp.  St. 
1911,  p.  204,  1912  Supp.  F.  8.  A.  v.  1,  p.  206.  "When  it 
appears  to  the  court  in  any  case  that  the  facts  set  forth  in 
the  petition  of  the  claimant  do  not  furnish  any  ground  for 
relief,  it  shall  not  authorize  the  taking  of  any  testimony 
therein." 

§  2319.  Traverse. 

§  160,  Judicial  Code,**  86  Stat.  at  L.  1139,  Comp.  St. 
1911,  p.  208,  1912  F.  S.  A.v.  l,p.  205.  "The  said  allega- 
tions as  to  true  allegiance  and  voluntary  aiding,  abetting,  or 
giving  encouragement  to  rebellion  against  the  government 
may  be  traversed  by  the  government,  and  if  on  the  trial  such 
issues  shall  be  decided  against  the  claimant,  his  petition  shall 
be  dismissed." 

§  2320.  Burden  of  Proof. 

§  161,  Judicial  Code7  86  Stat.  at  L.  1139,  Comp.  St. 
1911,  p.  203,  1912  Supp.  F.  S.  A.  v.  1,  p.  205.  "Whenever 
it  is  material  in  any  claim  to  ascertain  whether  any  person 
did  or  did  not  give  any  aid  or  comfort  to  forces  or  government 
of  the  late  Confederate  States  during  the  Civil  War,  the 
claimant  asserting  the  loyalty  of  any  such  person  to  the  Unit- 
ed States  during  such  Civil  War  shall  be  required  to  prove  af- 
firmatively that  such  person  did,  during  said  Civil  War,  con- 
sistently adhere  to  the  United  States  and  did  give  no  aid  or 
comfort  to  persons  engaged  in  said  Confederate  service  in 
said  Civil  War." 

§  2321.  Testimony  Taken  before  Commissioners.  The 
method  of  taking  testimony  to  be  used  before  the  court  of  claims 
is  by  commission. 

§  163,  Judicial  Code,*  86  Stat.  at  L.  1140,  Comp.  St. 
1911,  p.  203,  1912  Supp.  F.  S.  A.  v.  1,  p.  205.  "The  court 

x  Re-enacting  §  1077,  R.  S.,  Rose's  Code,  §  1460,  Comp.  St.  1901,  p.  742, 
2  F.  S.  A.  69,  which  section  is  repealed  by  §  297,  Judicial  Code. 

xx  Re-enacting  §  1073,  R.  S.,  Rose's  'Code,  §  1456,  Comp.  St.  1901,  p. 
741,  2  F.  S.  A.  68,  which  is  repealed  by  §  297,  Judicial  Code. 

r  Re-enacting  part  of  §  1074.  R.  S.,  Rose's  Code,  §  1457,  Foster's  Fed. 
Prac.  (4th  ed.)  p.  1718,  Comp.  St.  1901,  p.  742,  2  F.  S.  A.  68,  which  section 
is  repealed  by  §  297,  Judicial  Code. 

"Re-enacting  §  1075,  R.  S.,  Rose's  Code,  §  1458,  Comp.  St.  1901,  p.  742, 
2  F.  S.  A.  68,  which  section  is  repealed  by  §  297,  Judicial  Code. 


628^       MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  2322 

of  claims  shall  have  power  to  appoint  commissioners  to 
take  testimony  to  be  used  in  the  investigation  of  claims  which 
come  before  it,  to  prescribe  the  fees  which  they  shall  receive 
for  their  services,  and  to  issue  commissions  for  the  taking  of 
such  testimony,  whether  taken  at  the  instance  of  the  claim- 
ant or  of  the  United  States." 

§  167,  Judicial  Code,9-  86  Stat.  at  L.  1140,  Comp.  St. 
1911,  p.  204,  1912  Supp.  F.  8.  A.  v.  1,  p.  206.  "The  testi- 
mony in  cases  pending  before  the  court  of  claims  shall  be 
taken  in  the  county  where  the  witness  resides,  when  the 
same  can  be  conveniently  done." 

§  168,  Judicial  Code?  36  Stat.  at  L.  1140,  Comp.  St. 
1911,  p.  204,  1912  Supp.  F.  S.  A.  v.  1,  p.  206.  "The  court 
of  claims  may  issue  subpoenas  to  require  the  attendance  of 
witnesses  in  order  to  be  examined  before  any  person  com- 
missioned to  take  testimony  therein.  Such  subpoenas  shall 
have  the  same  force  as  if  issued  from  a  district  court,  and 
compliance  therewith  shall  be  compelled  under  such  rules  and 
orders  as  the  court  shall  establish." 

§  170,  Judicial  Code,c.  36  Stat.  at  L.  1140,  Comp.  St. 
1911,  p.  205,  1912  Supp.  F.  S.  A.  v.  1,  p.  207.  "The  com- 
missioner taking  testimony  to  be  used  in  the  court  of  claims 
shall  administer  an  oath  or  affirmation  to  the  witness  brought 
before  him  for  examination." 

§  2322.  Examination  of  Claimant. 

§  166,  Judicial  Code,A  36  Stat.  at  L.  1140,  Comp.  St. 
1911,  p.  204,  1912  Supp.  F.  S.  A.  v.  1,  p.  206.  "The  court 
may,  at  the  instance  of  the  attorney  or  solicitor  appearing  in 
behalf  of  the  United  States,  make  an  order  in  any  case 
pending  therein,  directing  any  claimant  in  such  case  to  ap- 

a  Re-enacting  §  1081,  R.  S.,  Rose's  Code,  §  1463,  Foster's  Fed.  Prac.  (4th 
ed.)  p.  1720,  Comp.  St.  1901,  p.  743,  2  F.  S.  A.  70,  which  section  is  repealed 
by  §  297,  Judicial  Code. 

'  b  Re:enacting  §  1082,  R.  S.,  Rose's  Code,  §  1464,  Comp.  St.  1901,  p.  744,  2 
F.  S.  A.  70,  which  is  repealed  by  §  297,  Judicial  Code. 

c  Re-enacting  §  1084,  R.  S..  Rose's  Code,  §  1466,  Comp.  St.  1901,  p.  744, 
2  F.  S.  A.  71,  which  section  is  repealed  by  §  297,  Judicial  Code. 

d  Re-enacting  §  1080,  R.  S.,  Rose's  Code,  §  1462,  Foster's  Fed.  Prac.  (4th 
ed.)  p.  1719,  Comp.  St.  1901..  p.  743,  2  F.  S.  A.  70,  which  section  is  repealed 
by  §  297,  Judicial  Code.  In  general  United  States  v.  Greathouse,  166  U.  S. 
601.  41  L.  ed.  1130,  17  Sup.  Ct.  Rep.  70]. 


§    2324  COURT  OF  CLAIMS  629 

pear,  upon  reasonable  notice,  before  any  commissioner  of 
the  court  and  be  examined  on  oath  touching  any  or  all  matters 
pertaining  to  said  claim.  Such  examination  shall  be  re- 
duced to  writing  by  the  said  commissioner,  and  be  returned 
to  and  filed  in  the  court,  and  may,  at  the  discretion  of  the 
attorney  or  solicitor  of  the  United  States  appearing  in  the 
case,  be  read  and  used  as  evidence  on  the  trial  thereof.  And 
if  any  claimant,  after  such  order  is  made  and  due  and  rea- 
sonable notice  is  given  to  him,  fails  to.  appear,  or  refuses  to 
testify  or  answer  fully  as  to  all  matters  within  his  knowl- 
edge material  to  the  issue,  the  court  may,  in  its  discretion, 
order  that  the  said  cause  shall  not  be  brought  forward  for 
trial  until  he  shall  have  fully  complied  with  the  order  of  the 
court  in  the  premises." 

§  2323.  Evidence  from  Departments  and  Congress. 

§  164,  Judicial  Code*  36  Stat.  at  L.  1140,  Camp.  St. 
1911,  p.  204,  1912  Supp.  F.  S.  A.  v.  1,  p.  205.  "The  said 
court  shall  have  power  to  call  upon  any  of  the  departments 
for  any  information  or  papers  it  may  deem  necessary,  and 
shall  have  the  use  of  all  recorded  and  printed  reports  made 
by  the  committees  of  each  House  of  Congress,  when  deemed 
necessary  in  the  prosecution  of  its  business.  But  the  head  of 
any  department  may  refuse  and  omit  to  comply  with  any 
call  for  information  or  papers  when,  in  his  opinion,  such 
compliance  would  be  injurious  to  the  public  interest." 

§  2324.  Witnesses. 

Competency. 

§  186,  Judicial  Code*  36  Stat.  at  L.  1143,  Comp.  St. 
1911,  p.  208,  1912  Supp.  F.  S.  A.  v.  1,  210,  as  amended 
Act  Feb.  5,  1912,  ch.  28,  37  Stat.  at  L.  61.  "No  person 
shall  be  excluded  as  a  witness  in  the  court  of  claims  on 
account  of  color  or  because  he  or  she  is  a  party  to  or  interested 
in  the  cause  or  proceeding;  and  any  plaintiff  or  party  in 

e  Re-enacting  §  1076,  R.  S.,  Rose's  Code,  §  1459,  Comp.  St.  1901,  p.  742.  2 
F.  S.  A.  69,  which  section  is  repealed  by  §  297,  Judicial  Code.  In  general, 
Oakes  v.  United  States,  174  U.  S.  778,  43  L.  ed.  1169.  19  Sup.  Ct.  Rep.  864. 

'Combining  §  1087,  R.  S.,  Rose's  Code,  §  1461.  Foster's  Fed.  Prac.  (4th  ed.) 
p.  1720,  Comp.  St.  1901,  p.  743,  2  F.  S.  A.  69;  §  6  of  the  Bowman  act  of  March 
3,  1883.  ch.  116,  Rose's  Code,  §  1478.  22  Stat.  at  L.  486,  Comp.  St.  1901,  p.  749. 
2  F.  S.  A.  79;  and  §  8  of  the  Tucker  act  of  March  3,  1887,  ch.  359,  24  Stat. 
at  L.  506,  Comp.  St.  1901,  p.  73.  2  F.  S.  A.  85,  all  of  which  sections  are  re- 
pealed by  §  297,  Judicial  Code. 


630       MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  2325 

interest  may  be  examined  as  a  witness  on  the  part  of  the 
government." 

Cross-examination. 

§  169,  Judicial  Code*  36  Stat.  at  L.  1140,  Comp.  St. 
1911,  p.  204,  1912  Supp.  F.  8.  A.  v.  1,  p.  206.  "In  taking 
testimony  to  be  used  in  support  of  any  claim,  opportunity 
shall  be  given  to  the  United  States  to  file  interrogatories,  or 
by  attorney  to  examine  witnesses,  under  such  regulations 
as  said  court  shall  prescribe;  and  like  opportunity  shall  be 
afforded  the  claimant,  in  cases  where  testimony  is  taken  on 
behalf  of  the  United  States,  under  like  regulations." 

§  2325.  New  Trial. 

On  motion  of  claimant. 

§  174,  Judicial  Code*  36  Stat.  at  L.  1141,  Comp.  St. 
1911,  p.  205,  1912  Supp.  F.  S.  A.  v.  1,  p.  207.  "When 
judgment  is  rendered  against  any  claimant  the  court  may 
grant  a  new  trial  for  any  reason  which,  by  the  rules  of  com- 
mon law  or  chancery  in  suits  between  individuals,  would 
furnish  sufficient  ground  for  granting  a  new  trial." 

On  motion  of  United  States. 

§  175,  Judicial  Code,1  36  Stat.  at  L.  11 41,  Comp.  St. 
1911,  p.  205,  1912  Supp.  F.  S.  A.  v.  1,  p.  207.  "The  court 
of  claims,  at  any  time  while  any  claim  is  pending  before  it, 
or  on  appeal  from  it,  or  within  two  years  next  after  the  final 
disposition  of  such  claim,  may,  on  motion,  on  behalf  of  the 
United  States,  grant  a  new  trial  and  stay  the  payment  of  any 
judgment  therein,  upon  such  evidence,  cumulative  or  other- 
wise, as  shall  satisfy  the  court  that  any  fraud,  wrong,  or 
injustice  in  the  premises  has  been  done  to  the  United  States; 
but  until  an  order  is  made  staying  the  payment  of  a  judg- 
ment, the  same  shall  be  payable  and  paid  as  now  provided 
by  law." 

s  Re-enacting  §  1083.  R.  S.,  Rose's  Code,  §  1465,  Comp.  St.  1901,  p.  744, 
2  F.  S.  A.  71,  which  section  is  repealed  by  §  297,  Judicial  Code. 

h  Re-enacting  §  1087,  R.  S.,  Rose's  Code,  §  1469.  Foster's  Fed.  Prac.  (4th 
ed.)  p.  1733,  Comp.  St.  1901,  p.  745,  2  F.  S.  A.  71,  which  section  is  repealed  by 
§  297,  Judicial  Code.  Nance  v.  United  States,  23  Ct.  Cl.  463 ;  Payan's  Motion, 
15  Ct.  Cl.  56. 

i  Re-enacting  §  1088.  R.  S.,  Rose's  Code,  §  1470,  Comp.  St.  1901,  p.  745,  2 
F.  S.  A.  72,  which  section  is  repealed  by  §  297,  Judicial  Code.  In  General, 
Sanderson  v.  United  States,  210  U.  S.  168,  42  L.  ed.  1007,  28  Sup.  Ct.  Rep. 


§    2327  COURT  OF  CLAIMS  631 

§  2326.  Interest. 

On  accounts  of  disbursing  officers. 

§  147,  Judicial  Code*  36  Stat.  at  L.  1137,  Comp.  St. 
1911,  p.  199,  1912  Supp.  F.  S.  A.  v.  1,  p.  201.  "Whenever 
the  court  of  claims  ascertains  the  facts  of  any  loss  by  any 
paymaster,  quartermaster,  commissary  of  subsistence,  or  other 
disbursing  officer,  in  the  cases  hereinbefore  provided,  to  have 
been  without  fault  or  negligence  on  the  part  of  such  officer,  it 
shall  make  a  decree  setting  forth  the  amount  thereof,  and 
upon  such  decree  the  proper  accounting  officers  of  the  Treas- 
ury shall  allow  to  such  officer  the  amount  so  decreed  as  a 
credit  in  the  settlement  of  his  accounts." 

§  777,  Judicial  Code*  36  Stat.  at  L.  1141,  Comp.  St. 
1911,  p.  206,  1912  Supp.  F.  S.  A.  v.  1,  p.  207.  "No  in- 
terest shall  be  allowed  on  any  claim  up  to  the  time  of  the 
rendition  of  judgment  thereon  by  the  court  of  claims,  unless 
upon  a  contract  expressly  stipulating  for  the  payment  of 
interest." 

§  2327.  Costs. 

Fees  of  commissioner. 

§  111,  Judicial  Code,1  36  Stat.  at  L.  1141,  Comp.  St. 
1911,  p.  205,  1912  Supp.  F.  S.  A.  v.  1,  p.  207.  "When 
testimony  is  taken  for  the  claimant,  the  fees  of  the  commis- 
sioner before  whom  it  is  taken,  and  the  cost  of  the  commis- 
sion and  notice,  shall  be  paid  by  such  claimant ;  and  when 
it  is  taken  at  the  instance  of  the  government,  such  fees 
shall  be  paid  out  of  the  contingent  fund  provided  for  the 
court  of  claims,  or  other  appropriation  made  by  Congress 
for  that  purpose." 

661;  Henry's  Motion,  15  Ct.  Cl.  166;  McCollum  v.  United  States,  33  Ct.  Cl. 
469;  United  States  v.  Young,  94  U.  S.  258,  24  L.  ed.  153;  United  States  v. 
Crussell,  12  Wall.  175,  20  L.  ed.  384;  Young  v.  United  States,  95  U.  S.  641, 
24  L.  ed.  467. 

J  Re-enacting  §  1062,  R.  S.,  Rose's  Code,  §  1451,  Comp.  St.  1901,  p.  737,  2 
F.  S.  A.  61,  which  section  is  repealed  by  §  297,  Judicial  Code.  In  general, 
McClure  v.  United  States,  116  U.  S.  145,  29  L.  ed.  572,  6  Sup.  Ct.  Rep.  321. 

k  Re-enacting  §  1091,  R.  S.,  Rose's  Code,  §  1473,  Foster's  Fed.  Prac.  (4th 
ed.)  pp.  287,  1737,  Comp.  St.  1903,  p.  747,  2  F.  S.  A.  73,  which  section  is  re- 
pealed by  §  287,  Judicial  Code.  Rice  v.  United  States,  21  Ct.  Cl.  413,  122  U.  S. 
611,  30  L.  ed.  793,  7  Sup.  Ct.  Rep.  1377:  United  States  v.  Blackfeather,  155 
U.  S.  180,  39  L.  ed.  114,  15  Sup.  Ct.  Rep.  64:  Harrey  v.  United  States,  113 
U.  S.  243,  28  L.  ed.  987,  5  Sup.  Ct.  Rep.  465;  Marvin  v.  United  States,  44 
Fed.  405.  In  general,  United  States  ex  rel.  Angerica  v.  Bayard,  127  I".  S. 
251,  32  L.  ed.  159,  8  Sup.  Ct.  Rep.  1156. 

1  Re-enacting  §  1085,  R.  S.,  Rose's  Code,  §  1467.  Comp.  St.  1901,  p.  744, 
2  F.  S.  A.  71,  which  section  is  repealed  by  §  297,  Judicial  Code. 


632       MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  2  :,':-'-> 

Costs  to  prevailing  party. 

§  152,  Judicial  Code™  36  Slot,  at  L.  1138,  Comp.  St. 
1911,  p.  201,  1912  Supp.  F.  S.  A.  v.  1,  p.  203.  "If  the 
government  of  the  United  States  shall  put  in  issue  the  right 
of  the  plaintiff  to  recover,  the  court  may,  in  its  discretion, 
allow  costs  to  the  prevailing  party  from  the  time  of  joining 
such  issue.  Such  costs,  however,  shall  include  only  what  is 
actually  incurred  for  witnesses,  and  for  summoning  the  same, 
and  fees  paid  to  the  clerk  of  the  court." 

Cost  of  printing  record. 

§  176,  Judicial  Code,"  36  Stat.  at  L.  1141,  Comp.  St. 
1911,  p.  206,  1912  Supp.  F.  S.  A.  v.  1,  p.  208.  ''There 
shall  be  taxed  against  the  losing  party  in  each  and  every 
cause  pending  in  the  court  of  claims  the  cost  of  printing  the 
record  in  such  case,  which  shall  be  collected,  except  when  the 
judgment  is  against  the  United  States,  by  the  clerk  of  said 
court  and  paid  into  the  Treasury  of  the  United  States." 

§  2328.  Effect  of  Judgment. 

Final  judgment  a  bar. 

§  179,  Judicial  Code,0  36  Stat.  at  L.  1141,  Comp.  St. 
1911,  p.  206,  1912  Supp.  F.  S.  A.  v.  1,  p.  208.  "Any  final 
judgment  against  the  claimant  on  any  claim  prosecuted  as 
provided  in  this  chapter  shall  forever  bar  any  further  claim 
or  demand  against  the  United  States  arising  out  of  the 
matters  involved  in  the  controversy." 

Effect  of  payment. 

§  178,  Judicial  Code,9  36  Stat.  at  L.  1U1,  Comp.  St. 
1911,  p.  206,  1912  Supp.  F.  S.  A.  v.  1,  p.  208.     "The  pay- 
in  Re-enacting  §   15,  of  act  of  March  3,  1889,  ch.  359,  24  Stat.  at  L.  508, 

Foster's  Fed.  Prac.  (4th  ed.)   pp.  287,  1035,  Comp.  St.  1901,  p.  758,  2  F.  S.  A. 

88,  which  section  is  repealed  by  §  297,  Judicial  Code.     Costs,  United  States 

v.  Harmon,  147  U.  S.  268,  37  L.  ed.  164,  13  Sup.  Ct.  Rep.  327. 

"  Drawn  from  act  of  March  3,  1877,  ch.  105,  Rose's  Code,  §   1849,  Comp. 

St.  1901,  705,  2  F.  S.  A.  293. 

Railroad  Co.  v.  Collector,  96  U.  S.  594,  24  L.  ed.  825.     In  general,  Railroad 

Co.  v.  Collector,  96  U.  S.  594,  24  L.  ed.  825. 

o  Re-enacting  §  1092,  R.  S.,  Rose's  Code,  §  1474,  Comp.  St.  1901,  p.  747, 

2  F.  S.  A.  74,  which  section  is  repealed  by  §  297,  Judicial  Code. 

Silvey's  Case,   7   Ct.   Cl.  305;    Spicer's  Case,   5   Ct.   Cl.   34.     Dismissal   for 

want  of  jurisdiction  is  not  a  final  judgment  upon  the  merits  so  as  to  bar 

the  claimant.    Green  v.  United  States,  18  Ct.  Cl.  93.    In  general,  United  States 

v.  O'Grady,  89  U.  S.  641,  22  L.  ed.  772. 

P  Re-enacting  §  1092,  R.  S.,  Rose's  Code,  §  1474,  Foster's  Fed.  Prac.  (4th  ed.) 

p.  1739,  Comp.  St.  1901,  p.  747,  2  F.  S.  A.  74,  which  section  is  repealed  by 

§  297,  Judicial  Code. 


§  2329  COURT  OF  CIAIMS  633 

nient  of  the  amount  due  by  any  judgment  of  the  court  of 
claims,  and  of  any  interest  thereon  allowed  by  law,  as  pro- 
vided by  law,  shall  be  a  full  discharge  to  the  United  States 
of  all  claim  and  demand  touching  any  of  the  matters  in- 
volved in  the  controversy." 

Method  of  payment. 

§  1089,  R.  8.,  Comp.  Stat.  1901,  p.  745,  2  F.  S.  A.  73, 
Roses  Code,  §  1471.  "In  all  cases  of  final  judgments  by 
the  court  of  claims,  or,  on  appeal,  by  the  Supreme  Court, 
where  the  same  are  affirmed  in  favor  of  the  claimant,  the 
sum  due  thereby  shall  be  paid  out  of  any  general  appropria- 
tion made  by  law  for  the  payment  and  satisfaction  of  private 
claims,  on  presentation  to  the  Secretary  of  the  Treasury  of  a 
copy  of  said  judgment,  certified  by  the  clerk  of  the  court  of 
claims,  and  signed  by  the  chief  justice,  or,  in  his  absence, 
by  the  presiding  judge  of  said  court." 

§  2329.  Reports  of  Judgments  to  Congress  and  Executive 
Officers. 

§  143,  Judicial  Code*  36  Stat.  at  L.  1136,  Comp.  St. 
1911,  p.  198,  1912  Supp.  F.  S.  A.  v.  1,  p.  199.  "On  the 
first  day  of  every  regular  session  of  Congress,  the  clerk  of 
the  court  of  claims  shall  transmit  to  Congress  a  full  and 
complete  statement  of  all  the  judgments  rendered  by  the 
court  during  the  previous  year,  stating  the  amounts  thereof 
and  the  parties  in  whose  favor  they  were  rendered,  together 
with  a  brief  synopsis  of  the  nature  of  the  claims  upon  which 
they  were  rendered.  At  the  end  of  every  term  of  the  court 
he  shall  transmit  a  copy  of  its  decisions  to  the  heads  of  de- 
partments; to  the  Solicitor,  the  Comptroller,  and  the  Audit- 
ors of  the  Treasury;  to  the  Commissioner  of  the  General 
Land  Office  and  of  Indian  Affairs ;  to  the  chiefs  of  bureaus, 
and  to  other  officers  charged  with  the  adjustment  of  claims 
against  the  United  States." 

A  motion  for  a  new  trial  or  to  vacate  a  judgment  will  not  be  entertained 
after  discharge  of  the  judgment  by  payment.  Vaughn  v.  United  States,  34 
Ct.  Cl.  342;  Russell's  Motion,  15  Ct.  Cl.  168;  Michot  v.  United  States,  31 
Ct.  Cl.  299.  See  also,  Ravesies  v.  United  States,  24  Ct.  Cl.  224.  Discharge, 
United  States  v.  Frerichs,  124  U.  S.  315,  31  L.  ed.  471,  8  Sup.  Ct.  Rep.  514. 

a  Re-enacting  §  1057,  R.  S.,  Rose's  Code,  §  593,  Comp.  St.  1901,  p.  731, 
2  F.  S.  A.  55,  which  section  is  repealed  by  §  297,  Judicial  Code. 


634       MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  2330 

The   purpose   of   these   reports   is   to   furnish   guides   in   like 
cases.8 

Attorney  General's  report  of,  to  Congress. 
§  188,  Judicial  Code,*  36  Stat.  at  L.  1142,  Comp.  St. 
1911,  p.  207,  1912  Supp.  F.  S.  A.  v.  1,  p.  209.  "The  At- 
torney General  shall  report  to  Congress,  at  the  beginning  of 
each  regular  session,  the  suits  under  section  one  hundred  and 
eighty  (§  2311,  infra),  in  which  a  final  judgment  or  decree 
has  been  rendered,  giving  the  date  of  each  and  a  statement 
of  the  costs  taxed  in  each  case." 

§  2330.  Payment  of  Judgments. 

On  claims  referred  from  departments. 
§  150,  Judicial  Code,"  36  Stat.  at  L.  1138,  Comp.  St. 
1911,  p.  200,  1912  Supp.  F.  S.  A.  v.  1,  p.  202.  "The 
amount  of  any  final  judgment  or  decree  rendered  in  favor  of 
the  claimant,  in  any  case  transmitted  to  the  court  of  claims 
under  the  two  preceding  sections  (§  2309,  above),  shall  be 
paid  out  of  any  specific  appropriation  applicable  to  the  case, 
if  any  such  there  be  ;  and  where  no  such  appropriation  exists, 
the  judgment  or  decree  shall  be  paid  in  the  same  manner  as 
other  judgments  of  the  said  court." 

Reports  to  Congress  of  adjudicated  claims  referred  from  de- 
partments and  Congress. 

§  187,  Judicial  Code*  36  Stat.  at  L.  1148,  Comp.  St. 
1911,  p.  208,  1912  Supp.  F.  S.  A.  v.  1,  p.  210.  "Reports 
of  the  court  of  claims  to  Congress,  under  sections  one  hun- 
dred and  forty-eight  (§  2309,  above)  and  one  hundred  and 
fifty-one  (§  2330,  above),  if  not  finally  acted  upon  during 
the  session  at  which  they  are  reported,  shall  be  continued 
from  session  to  session  and  from  Congress  to  Congress  until 
the  same  shall  be  finally  acted  upon." 

SMeigs  v.  United  States,  20  Ct.  Cl.  181. 

'Re-enacting  §  11  of  Tucker  act  of  March  3,  1887,  ch.  359,  Rose's  Code, 
§  1487,  Foster's  Fed.  Prac.  (4th  ed.)  p.  287,  24  Stat.  at  L.  507,  Comp.  St. 
1901,  p.  756.  2  F.  S.  A.  86,  which  section  is  repealed  by  §  297,  Judicial  Code. 
In  general,  Sena  v.  American  Turquoise  Co.  220  U.  S.  497,  55  L.  ed.  559,  31 
Sup.  Ct.  Rep.  488. 

*  Re-enacting  §  1065,  R.  S.,  Rose's  Code,  §  1453,  Comp.  St.  1901,  p.  739,  2 
F.  S.  A.  64,  which  section  is  repealed  by  §  297,  Judicial  Code. 

t  Drawn  from  §  7  of  the  Bowman  act  of  March  3,  1883,  ch.  116,  Rose's 
Code,  §  1479,  22  Stat.  at  L.  486,  Comp.  St.  1901,  p.  750,  2  F.  S.  A.  79,  which 
section  is  repealed  by  §  297,  Judicial  Code. 


§    2332  COURT  OF  CLAIMS  635 

§  2331.  Judgments  for  Set-Off  or  Counterclaim — Enforce- 
ment of. 

§  146,  Judicial  Code™  36  Stat.  at  L.  1137,  Comp.  8t. 
1911,  p.  199,  1912  Supp.  F.  8.  A.  v.  1,  p.  201.  "Upon  the 
trial  of  any  cause  in  which  any  set-off,  counterclaim,  claim 
for  damages,  or  other  demand  is  set  up  on  the  part  of  the 
government  against  any  person  making  claim  against  the 
government  in  said  court,  the  court  shall  hear  and  deter- 
mine such  claim  or  demand  both  for  and  against  the  gov- 
ernment and  claimant;  and  if  upon  the  whole  case  it  finds 
that  the  claimant  is  indebted  to  the  government  it  shall 
render  judgment  to  that  effect,  and  such  judgment  shall  be 
final,  with  the  right  of  appeal,  as  in  other  cases  provided 
for  by  law.  Any  transcript  of  such  judgment,  filed  in  the 
clerk's  office  of  any  district  court,  shall  be  entered  upon 
the  records  thereof,  and  shall  thereby  become  and  be  a 
judgment  of  such  court  and  be  enforced  as  other  judgments 
in  such  court  are  enforced." 

§  2332.  Appeals. 

%  181,  Judicial  Code?  36  Stat.  at  L.  1142,  Comp.  St. 
1911,  p.  207,  1912  Supp.  F.  S.  A.  v.  1,  p.  209.  "The 
plaintiff  or  the  United  States,  in  any  suit  brought  under  the 
provision  of  the  section  last  preceding  (§  2311,  above),  shall 
have  the  same  right  of  appeal  as  is  conferred  under  sections 
two  hundred  and  forty-two  (§  2012,  supra),  and  two  hundred 
and  forty-three  (§  2012,  supra)  ;  and  such  right  shall  be  exer- 
cised only  within  the  time  and  in  the  manner  therein  pre- 
scribed." 

In  Indian  cases. 

§  182,  Judicial  Code,™  36  Stat.  at  L.  1142,  Comp.  St. 
1911,  p.  207,  1912  Supp.  F.  S.  A.  v.  1,  p.  209.  "In 'any 
case  brought  in  the  court  of  claims  under  any  act  of  Congress 

«  Re-enacting  §  1061,  R.  S.,  Rose's  Code,  §  1449,  Foster's  Fed.  Prac.  (4th  ed.) 
p.  1686,  Comp.  St.  1901,  p.  737,  2  F.  S.  A.  61,  which  section  is  repealed  by 
§  297,  Judicial  Code.  In  general,  Wisconsin  Central  Railroad  Co.  v.  United 
States,  164  U.  S.  190,  41  L.  ed.  406,  17  Sup.  Ct.  Rep.  45. 

v  Drawn  from  §  9  of  Tucker  act  of  March  3,  1887,  ch.  359,  Rose's  Code, 
§§  1487,  1892,  Comp.  St.  1901,  p.  756,  2  F.  S.  A.  85,  which  section  is  repealed 
by  §  297,  Judicial  Code.  In  general,  Miltenberger  v.  Loganport  Railway  Co. 
106  U.  S.  286,  27  L.  ed.  117,  1  Sup.  Ct.  Rep.  140. 

w  Re-enacting  §  10  of  act  of  March  3,  1891,  ch.  538,  26  Stat.  at  L.  854, 
Comp.  St.  1901,  p.  763,  2  F.  S.  A.  100. 


636       MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  2332 

by  which  that  court  is  authorized  to  render  a  judgment  or 
decree  against  the  United  States,  or  against  any  Indian  tribe 
or  any  Indians,  or  against  any  fund  held  in  trust  by  the 
United  States  for  any  Indian  tribe  or  for  any  Indians,  the 
claimant,  or  the  United  States,  or  the  tribe  of  Indians,  or 
other  party  in  interest,  shall  have  the  same  right  of  appeal 
as  is  conferred  under  sections  two  hundred  and  forty-two  and 
two  hundred  and  forty-three;  (§  2012,  supra)  and  such  right 
shall  be  exercised  only  within  the  time  and  in  the  manner 
therein  prescribed." 


CHAPTER  48. 

CIRCUIT  COURT  OF  APPEALS. 


Sec. 

2400.  Judicial   Circuits. 

2401.  Organization — Judges,  Marshals,   Clerks. 

2402.  Organization — Allotment  of  Supreme  Court  Judges. 

2403.  Organization — Competence  and  Presiding  of  Supreme  Court  Judges. 

2404.  Clerk  and  Deputies. 

2405.  Marshals. 

2406.  Terms. 

2407.  Rules  of  Procedure. 

2408.  Admission  to  Practice. 

2409.  Reports  of  Decisions. 

§  2400.  Judicial   Circuits. 

§116,  Judicial  Code*  36  Stat.  at  L.  1131,  Comp.  St. 
1911,  p.  190,  1912  Supp.  F.  S.  A.  v.  1,  p.  191.  "There 
shall  be  nine  judicial  circuits  of  the  United  States,  con- 
stituted as  follows: 

"First.  The  first  circuit  shall  include  the  districts  of 
Rhode  Island,  Massachusetts,  New  Hampshire,  and  Maine. 

"Second.  The  second  circuit  shall  include  the  districts 
of  Vermont,  Connecticut,  and  New  York. 

"Third.  The  third  circuit  shall  include  the  districts 
of  Pennsylvania,  New  Jersey,  and  Delaware. 

"Fourth.  The  fourth  circuit  shall  include  the  districts 
of  Maryland,  Virginia,  West  Virginia,  North  Carolina,  and 
South  Carolina. 

"Fifth.  The  fifth  circuit  shall  include  the  districts  of 
Georgia,  Florida,  Alabama,  Mississippi,  Louisiana,  and 
Texas. 

a  Including  §  604,  R.  S.,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  223,  225,  Comp. 
St.  1901,  p.  485,  4  F.  S.  A.  59,  and  parts  of  acts  in  4  F.  S.  A.  60,  34  Stat.  at  L. 
275,  1909  Supp.  F.  S.  A.  641,  which  statutes  are  repealed  by  §  297,  Judicial 
Code.  In  general.  Barrett  v.  United  States,  169  U.  S.  218,  42  L.  ed.  723, 
18  Sup.  Ct.  Rep.  327. 

637 


638       MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  2401 

"Sixth.  The  sixth  circuit  shall  include  the  districts  of 
Ohio,  Michigan,  Kentucky,  and  Tennessee. 

"Seventh.  The  seventh  circuit  shall  include  the  districts 
of  Indiana,  Illinois,  and  Wisconsin. 

"Eighth.  The  eighth  circuit  shall  include  the  districts 
of  Nebraska,  Minnesota,  Iowa,  Missouri,  Kansas,  Arkansas, 
Colorado,  Wyoming,  North  Dakota,  South  Dakota,  Utah, 
and  Oklahoma  (now  also  New  Mexico). 

"Ninth.  The  ninth  circuit  shall  include  the  districts 
of  California,  Oregon,  Nevada,  Washington,  Idaho,  Mon- 
tana, and  Hawaii  (now  also  Arizona)." 

§  2401.  Organization — Judges,  Marshals,  Clerks. 

§  777,  Judicial  Code?  36  Slot,  at  L.  1131,  Comp.  St. 
1911,  p.  190,  1912  Supp.  F.  S.  A.  v.  1,  p.  191.  "There 
shall  be  in  each  circuit  a  circuit  court  of  appeals,  which 
shall  consist  of  three  judges,  of  whom  two  shall  constitute 
a  quorum,  and  which  shall  be  a  court  of  record,  with  appel- 
late jurisdiction,  as  hereinafter  limited  and  established." 

§  775,  Judicial  Code*  36  Stat.  at  L.  1131,  Comp.  St. 
1911,  p.  190,  1912  Supp.  F.  8.  A.  v.  1,  p.  192,  as  amended 
Jan,  13,  1912,  ch.  9,  37  Stat.  at  L.  53.  "There  shall  be 
in  the  second,  seventh,  and  eighth  circuits,  respectively, 
four  circuit  judges;  in  the  fourth  circuit,  two  circuit  judges; 
and  in  each  of  the  other  circuits,  three  circuit  judges,  to  be 
appointed  by  the  President,  by  and  with  the  advice  and  con- 
sent of  the  Senate.  They  shall  be  entitled  to  receive  a  salary 
at  the  rate  of  seven  thousand  dollars  a  year,  each,  payable 
monthly.  Each  circuit  judge  shall  reside  within  his  circuit. 
The  circuit  judges  in  each  circuit  shall  be  judges  of  the  cir- 
cuit court  of  appeals  in  that  circuit,  and  it  shall  be  the  duty 
of  each  circuit  judge  in  each  circuit  to  sit  as  one  of  the  judges 
of  the  circuit  court  of  appeals  in  that  circuit  from  time  to 
time  according  to  law :  Provided,  That  nothing  in  this  section 
shall  be  construed  to  prevent  any  circuit  judge  holding  dis- 
trict court  or  serving  in  the  commerce  court,  or  otherwise,  as 
provided  for  and  authorized  in  other  sections  of  this  act." 

*  Re-enacting  26  Stat.  at  L.  826,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  223,  759, 
835,  1047,  1237,  1238,  1659,  2042,  2044,  2045,  2089,  2128,  2148-9,  Comp.  St. 
1901,  p.  547,  4  F.  S.  A.  396.  In  general,  Ex  parte  United  States.  226  U.  S. 
420,  57  L.  ed.  281,  33  Sup.  Ct.  Rep.  170. 

c  Superseding  §  2,  act  of  March  3,  1891,  26  Stat.  at  L.  826,  Rose's  Code, 
§§  563,  709,  804,  Comp.  St.  1901,  p.  547,  4  F.  S.  A.  396,  which  statute  is 
repealed  by  §  297,  Judicial  Code. 


§    2403  CIRCUIT   COURT    OF   APPEALS  G39 

§  121  f  Judicial  Code*  36  Stat.  at  L.  1132,  Comp.  St. 
1911,  p.  191,  1912  Supp.  F.  8.  A.  v.  1,  p.  193.  "The 
words  'circuit  justice'  and  l justice  of  a  circuit/  when 
used  in  this  title,  shall  be  understood  to  designate  the  jus- 
tice of  the  Supreme  Court  who  is  allotted  to  any  circuit; 
but  the  word  'judge,'  when  applied  generally  to  any  cir- 
cuit, shall  be  understood  to  include  such  justice." 

§  2402.  Organization  —  Allotment  of  Supreme  Court 
Judges. 

§119,  Judicial  Code*  36  Stat.  at  L.  1131,  Comp.  St. 
1911,  p.  191,  1912  Supp.  F.  S.  A.  v.  1,  p.  192.  "The 
Chief  Justice  and  associate  justices  of  the  Supreme  Court 
shall  be  allotted  among  the  circuits  by  an  order  of  the  court, 
and  a  new  allotment  shall  be  made  whenever  it  becomes 
necessary  or  convenient  by  reason  of  the  alteration  of  any 
circuit,  or  of  the  new  appointment  of  a  Chief  Justice  or 
associate  justice,  or  otherwise.  If  a  new  allotment  becomes 
necessary  at  any  other  time  than  during  a  term,  it  shall 
be  made  by  the  Chief  Justice,  and  shall  be  binding  until 
the  next  term  and  until  a  new  allotment  by  the  court.  When- 
ever, by  reason  of  death  or  resignation,  no  justice  is  allotted 
to  a  circuit,  the  Chief  Justice  may,  until  a  justice  is  regu- 
larly allotted  thereto,  temporarily  assign  a  justice  of  another 
circuit  to  such  circuit." 

§  2403.  Organization — Competence  and  Presiding  of  Su- 
preme Court  Judges. 

§  120,  Judicial  Code*  36  Stat.  at  L.  1132,  Comp.  St. 
1911,  p.  121,  1912  Supp.  F.  S.  A.  v.  1,  p.  192.  "The 
Chief  Justice  and  the  associate  justices  of  the  Supreme 

«  Re-enacting  §  605,  R.  S.,  Foster's  Fed.  Prac.  (4th  ed.)  p.  682,  Comp.  St. 
1901,  p.  486,  4  F.  S.  A.  238. 

The  justices  of  the  Supreme  Court  are  members  of  the  circuit  courts.  In 
re  Xi-agle,  135  U.  S.  1,  34  L.  ed.  55,  10  Sup.  Ct.  Rep.  658. 

«-  Superseding  §  606,  R.  S.,  Foster's  Fed.  Prac.  (4th  ed.)  p.  682,  Comp.  St. 
1901,  p.  487,  4  F.  S.  A.  238,  and  §  618,  Comp.  St.  1901,  p.  496,  4  F.  S.  A.  245, 
which  sections  are  repealed  by  §  297,  Judicial  Code. 

*  Re-enacting  §  3,  act  of  March  3,  1891,  ch.  217,  26  Stat.  at  L.  827,  Rose's 
Code,  §  309,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  1236,  1451,  1681,  1965,  1972, 
1981,  2013,  2014,  2016,  2048,  Comp.  St.  1901,  p.  548,  4  F.  S.  A.  396. 

A  decree  in  which  a  disqualified  judge  took  part  will  be  quashed  and  set 
aside  without  regard  to  its  merits.  Moran  v.  Dillingham,  174  U.  S.  153,  43 
L.  ed.  930,  19  Sup.  Ct.  Rep.  620.  American  Construction  Co.  v.  Jacksonville, 
etc.,  R.  Co.  148  U.  S.  372,  37  L.  ed.  486,  33  Sup.  Ct.  Rep.  758. 


64:0       MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  2404: 

Court  assigned  to  each  circuit,  and  the  several  district 
judges  within  each  circuit,  shall  be  competent  to  sit  as  judges 
of  the  circuit  court  of  appeals  within  their  respective  cir- 
cuits. In  case  the  Chief  Justice  or  an  associate  justice  of 
the  Supreme  Court  shall  attend  at  any  session  of  the  cir- 
cuit court  of  appeals,  he  shall  preside.  In  the  absence  of 
such  Chief  Justice,  or  associate  justice,  the  circuit  judges 
in  attendance  upon  the  court  shall  preside  in  the  order  of 
the  seniority  of  their  respective  commissions.  In  case  the 
full  court  at  any  time  shall  not  be  made  up  by  the  attendance 
of  the  Chief  Justice  or  the  associate  justice,  and  the  circuit 
judges,  one  or  more  district  judges  within  the  circuit  shall 
sit  in  the  court  according  to  such  order  or  provision  among 
the  district  judges  as  either  by  general  or  particular  assign- 
ment shall  be  designated  by  the  court:  Provided,  That  no 
judge  before  whom  a  cause  or  question  may  have  been  tried 
or  heard  in  a  district  court,  or  existing  circuit  court,  shall 
sit  on  the  trial  or  hearing  of  such  cause  or  question  in  the 
circuit  court  of  appeals." 

A  judge  who  sat  at  the  hearing  below  of  a  whole  cause  at  any 
stage  thereof  is  undoubtedly  disqualified  to  sit  in  the  circuit  court 
of  appeals  at  the  hearing  of  the  whole  cause  at  the  same  or  at  any 
later  stage.8  A  decree  in  which  a  disqualified  judge  took  part 
will  be  quashed  and  set  aside  without  regard  to  the  merits.4 

§  2404.  Clerk  and  Deputies. 

§  124,  Judicial  Code*  36  Stat.  at  L.  1132,  Comp.  St. 
1911,  p.  192,  1912  Supp.  F.  8.  A.  v.  1,  p.  193.  "Each 
court  shall  appoint  a  clerk,  who  shall  exercise  the  same 
powers  and  perform  the  same  duties  in  regard  to  all  matters 
within  its  jurisdiction,  as  are  exercised  and  performed  by 
the  clerk  of  the  Supreme  Court,  so  far  as  the  same  may  be 
applicable." 

§  125,  Judicial  Code?  36  Stat.  at  L.  1132,  Comp.  St. 

SMoran  v.  Dillingham,  174  U.  S.  153,  43  L.  ed.  930,  19  Sup.  Ct.  Rep.  620. 

4  Ibid.;  American  Constr.  Co.  v.  Jacksonville,  etc.,  R.  Co.  148  U.  S.  372,  37 
L.  ed  486,  13  Sup.  Ct.  Rep.  758. 

s  Re-enacting  part  of  §  2,  act  of  March  3,  1891,  ch.  517,  26  Stat.  at  L.  826, 
Comp.  St.  1901,  p.  547,  4  F.  S.  A.  396.  In  general.  Morton  v.  United  States, 
59  Fed.  349. 

h  New  legislation.  In  general,  Bryan,  Collector  of  the  Port  of  Charleston, 
v.  Ker,  Executrix,  222  U.  S.  107,  56 'L.  ed.  114,  32  Sup.  Ct.  Rep.  26. 


§    2405  CIRCUIT    COURT    OF   APPEALS  641 

1911,  p.  192,  1912  Supp.  F.  S.  A.  v.  1,  p.  193.  "The 
clerk  of  the  circuit  court  of  appeals  for  each  circuit  may, 
with  the  approval  of  the  court,  appoint  such  number  of  dep- 
uty clerks  as  the  court  may  deem  necessary.  Such  deputies 
may  be  removed  at  the  pleasure  of  the  clerk  appointing 
them,  with  the  approval  of  the  court.  In  case  of  the  death 
of  the  clerk  his  deputy  or  deputies  shall,  unless  removed 
by  the  court,  continue  in  office  and  perform  the  duties  of  the 
clerk  in  his  name  until  a  clerk  is  appointed  and  has  qualified  ; 
and  for  the  defaults  or  misfeasances  in  office  of  any  such 
deputy,  whether  in  the  lifetime  of  the  clerk  or  after  his 
death,  the  clerk  and  his  estate  and  the  sureties  on  his  official 
bond  shall  be  liable,  and  his  executor  or  administrator  shall 
have  such  remedy  for  such  defaults  or  misfeasances  commit- 
ted after  his  death  as  the  clerk  would  be  entitled  to  if  the 
same  had  occurred  in  his  lifetime." 

Act  Feb.  3,  1911,  cli.  33,  36  Stat.  at  L.  895,  1912  Supp. 
F.  8.  A.  v.  1,  p.  129.  "(United  States  courts — circuit  courts 
of  appeals — deputy  clerks  authorized.)  That  one  deputy  of 
the  clerk  of  each  circuit  court  of  appeals  may  be  appointed  by 
the  court  on  the  application  of  the  clerk  and  may  be  removed 
at  the  pleasure  of  the  court.  In  case  of  the  death  of  the  clerk 
his  deputy  shall,  unless  removed,  continue  in  office  and  per- 
form the  duties  of  the  clerk  in  his  name  until  a  clerk  is 
appointed  and  qualified ;  and  for  the  defaults  or  misfeas- 
ances in  office  of  any  such  deputy,  whether  in  the  lifetime 
of  the  clerk  or  after  his  death,  the  clerk  and  his  estate  and 
the  sureties  on  his  official  bond  shall  be  liable,  and  his  ex- 
ecutor or  administrator  shall  have  such,  remedy  for  such 
defaults  or  misfeasances  committed  after  his  death  as  the 
clerk  would  be  entitled  to  if  the  same  had  occurred  in  his 
lifetime." 

§  2405.  Marshals. 

§  128,  Judicial  Code,1  36  Stat.  at  L.  1132,  Comp.  St. 
1911,  p.  192,  1912  Supp.  F.  S.  A.  v.  1,  p.  193.  "The 
United  States  marshals  in  and  for  the  several  districts  of 
said  courts  shall  be  the  marshals  of  said  circuit  courts  of 
appeals,  and  shall  exercise  the  same  powers  and  perform 
the  same  duties,  under  the  regulations  of  the  court,  as  are 

»  Suporsodine  part  of  §  2,  act  of  March  3.  1891,  cli.  517,  20  Stat.  at  L.  826, 
Rose's  Code,  g|  .->f>3,  70!).  804,  Comp.  St.  1001,  p.  547,  4  K.  S.  A.  306. 
Montg.— 41. 


642        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2406 

exercised  and  performed  by  the  marshal  of  the  Supreme 
Court  of  the  United  States,  so  far  as  the  same  may  be  appli- 
cable." 

§  2406.  Terms. 

§  126,  Judicial  Code,1  S6  Stat.  at  L.  1132,  Comp.  St. 
1911,  p.  192,  1912  Supp.  F.  S.  A.  v.  1,  p.  193.  "A  term 
shall  be  held  annually  by  the  circuit  courts  of  appeals  in  the 
several  judicial  circuits  at  the  following  places,  and  at  such 
times  as  may  be  fixed  by  said  courts,  respectively:  In  the 
first  circuit,  in  Boston ;  in  the  second  circuit,  in  New  York ; 
in  the  third  circuit,  in  Philadelphia;  in  the  fourth  circuit, 
in  Richmond;  in  the  fifth  circuit,  in  New  Orleans,  Atlanta, 
Fort  Worth,  and  Montgomery;  in  the  sixth  circuit,  in  Cin- 
cinnati ;  in  the  seventh  circuit,  in  Chicago ;  in  the  eighth 
circuit,  in  St.  Louis,  Denver  or  Cheyenne,  and  St.  Paul; 
in  the  ninth  circuit,  in  San  Francisco,  and  each  year  in 
two  other  places  in  said  circuit  to  be  designated  by  the 
judges  of  said  court ;  and  in  each  of  the  above  circuits,  terms 
may  be  held  at  such  other  times  and  in  such  other  places 
as  said  courts,  respectively,  may  from  time  to  time  designate : 
Provided,  That  terms  shall  be  held  in  Atlanta  on  the  first 
Monday  in  October,  in  Fort  Worth  on  the  first  Monday  in 
November,  in  Montgomery  on  the  third  Monday  in  October, 
in  Denver  or  in  Cheyenne  on  the  first  Monday  in  September, 
and  in  St.  Paul  on  the  first  Monday  in  May.  All  appeals, 
writs  of  error,  and  other  appellate  proceedings  which  may 
be  taken  or  prosecuted  from  the  district  courts  of  the  United 
States  in  the  state  of  Georgia,  in  the  state  of  Texas,  and  in 
the  state  of  Alabama,  to  the  circuit  court  of  appeals  for  the 
fifth  judicial  circuit  shall  be  heard  and  disposed  of,  respec- 
tively, by  said  court  at  the  terms  held  in  Atlanta,  in  Fort 
Worth,  and  in  Montgomery,  except  that  appeals  or  writs  of 
error  in  cases  of  injunctions  and  in  all  other  cases  which, 
under  the  statutes  and  rules,  or  in  the  opinion  of  the  court, 
are  entitled  to  be  brought  to  a  speedy  hearing  may  be  heard 
and  disposed  of  wherever  said  court  may  be  sitting.  All 
appeals,  writs  of  errors,  and  other  appellate  proceedings 
which  may  hereafter  be  taken  or  prosecuted  from  the  dis- 

J  Re-enacting  26  Stat.  at  L.  827,  Corap.  St.  1901,  p.  548,  4  F.  S.  A.  689, 
32  Stat.  at  L.  548,  Foster's  Fed.  Prac.  (4th  ed.)  256,  4  F.  S.  A.  690,  32  Stat. 
at  L.  756,  4  F.  S.  A.  691,  32  Stat.  at  L.  329,  4  F.  S.  A.  692,  which  statute: 
are  repealed  by  §  297,  Judicial  Code. 


§    2407  CIRCUIT   COURT   OF   APPEALS  643 

trict  court  of  the  United  States  at  Beaumont,  Texas,  to  the 
circuit  court  of  appeals  for  the  fifth  circuit,  shall  be  heard 
and  disposed  of  by  the  said  circuit  court  of  appeals  at  the 
terms  of  court  held  at  New  Orleans :  Provided,  That  nothing 
herein  shall  prevent  the  court  from  hearing  appeals  or  writs 
of  error  wherever  the  said  courts  shall  sit,  in  cases  of  in- 
junctions and  in  all  other  cases  which,  under  the  statutes 
and  the  rules,  or  in  the  opinion  of  the  court,  are  entitled 
to  be  brought  to  a  speedy  hearing.  All  appeals,  writs  of 
error,  and  other  appellate  proceedings  which  may  be  taken 
or  prosecuted  from  the  district  courts  of  the  United  States 
in  the  states  of  Colorado,  Utah,  and  Wyoming,  and  the  su- 
preme court  of  the  territory  of  New  Mexico  to  the  circuit 
court  of  appeals  for  the  eighth  judicial  circuit,  shall  be 
heard  and  disposed  of  by  said  court  at  the  terms  held  either 
in  Denver  or  in  Cheyenne,  except  that  any  case  arising  in 
any  of  said  states  or  territory  may,  by  consent  of  all  the 
parties,  be  heard  and  disposed  of  at  a  term  of  said  court 
other  than  the  one  held  in  Denver  or  Cheyenne." 

§  2407.  Rules  of  Procedure. 

§  122,  Judicial  Code*  36  Stat.  at  L.  1132,  Comp.  St. 
1911,  p.  191,  1912  Supp.  F.  8.  A.  v.  1,  p.  193.  "Each  of 
said  circuit  courts  of  appeals  shall  prescribe  the  form  and 
style  of  its  seal,  and  the  form  of  writs  and  other  process  and 
procedure  as  may  be  conformable  to  the  exercise  of  its  ju- 
risdiction; and  shall  have  power  to  establish  all  rules  and 
regulations  for  the  conduct  of  the  business  of  the  court  with- 
in its  jurisdiction  as  conferred  by  law." 

Under  the  authority  of  this  statute,  rules  have  been  promul- 
gated for  each  of  the  nine  circuits. 

These  rules  are  so  similar  in  many  respects  that  they  are  print- 
ed in  our  Appendix  as  one  set  of  rules  with  notations  of  differ- 
ences where  any  exist  in  any  of  the  several  circuits  from  the  gen- 
eral rule  existing  in  the  other  circuits. 

In  taking  an  appeal  in  any  circuit  these  rules  should  be  con- 
sulted. 

k  Re-enacting  part  of  §  2,  act  of  March  3,  1891,  ch.  517,  26  Stat.  at  L.  826, 
Rose's  Code,  §§"563,  709,  804,  Comp.  St.  1901,  p.  547,  4  F.  S.  A.  396.  Bradford 
v.  Southern  Railway  Co.  195  U.  S.  243,  49  L.  ed.  178,  25  Sup.  Ct.  Rep.  55. 


644:       MOJXTUOMEKY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2400 

§  2408.  Admission  to  Practice.  Under  rule  7  all  circuits, 
an  attorney  may  be  admitted  to  practise  in  the  circuit  court  of 
appeals  when  admitted  to  practise  in  the  Supreme  or  District 
Court  of  the  United  States  on  taking  the  oath  or  affirmation  in 
the  form  prescribed  in  rule  2  of  the  Supreme  Court  of  the  Unit- 
ed States.  In  the  sixth,  eighth,  and  ninth  circuits  it  is  enough 
if  the  attorney  has  been  admitted  to  the  court  of  last  resort  in 
the  state  of  his  residence  and  takes  the  requisite  oaths.  Fees 
are  prescribed  in  last  named  circuits. 

§  2409.  Reports  of  Decisions.  All  decisions  from  the  time 
when  the  circuit  courts  of  appeals  were  established,  in  1891,  have 
been  reported  currently  in  the  Federal  Reporter,  and  are  now 
reported  also  in  the  C.  C.  A.  Reports,  of  which  there  are  now 
more  than  one  hundred  volumes. 


CHAPTEK  49. 

THE  SUPREME  COURT. 


Sec. 

2450.  Judges. 

2451.  Clerk. 
•2452.  Deputies. 

2453.  Marshal. 

2454.  Supreme  Court  Reporter. 

2455.  Admission  to  Practice. 
2450.  Terms. 

2457.  Adjournments. 

2458.  Original  Jurisdiction — Issues  of  Fact. 

2459.  Prohibition  and  Mandamus. 

§  2450.  Judges. 

§  215,  Judicial  Code*  36  Stat.  at  L.  1152,  Comp.  St. 
1911,  p.  221,  1912  Supp.  F.  8.  A.  v.  1,  p.  224.  "The  Su- 
preme Court  of  the  United  States  shall  consist  of  a  Chief 
Justice  of  the  United  States  and  eight  associate  justices,  any 
six  of  whom  shall  constitute  a  quorum." 

§  216,  Judicial  Code?  36  Stat.  at  L.  1152,  Comp.  St. 
1911,  p.  221,  1912  Supp.  F.  S.  A.  v.  1,  p.  224.  "The 
associate  justices  shall  have  precedence  according  to  the 
dates  of  their  commissions,  or,  when  the  commissions  of 
two  or  more  of  them  bear  the  same  date,  according  to  their 
ages." . 

§  217,  Judicial  Code,c  36  Stat.  at  L.  1152,  Comp.  St. 
1911,  p.  221,  1912  Supp.  F.  S.  A.  v.  1,  p.  22J+.  "In  case 
of  a  vacancy  in  the  office  of  Chief  Justice,  or  of  his  inabil- 

»  Re-enacting  §  673,  R.  S.  Rose's  Code,  §  32,  Comp.  St.  1901,  p.  558,  4 
F.  S.  A.  434,  which  section  is  repealed  by  §  297,  Judicial  Code. 

b  Re-enacting  §  674,  R.  S.  Rose's  Code,  §  83,  Foster's  Fed.  Prac.  (4th  ed.)  p. 
2068,  Comp.  St.  1901,  p.  558,  4  F.  S.  A.  434,  which  section  is  repealed  by 
§  297,  Juducial  Code. 

c  Re-enacting  §  675,  R.  S.  Rose's  Code,  §  34,  Comp.  St.  1901,  p.  558,  4 
F.  S.  A.  435,  which  section  is  repealed  by  §  297,  Judicial  Code. 

645 


646        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE     §  24:51 

ity  to  perform  the  duties  and  powers  of  his  office,  they  shall 
devolve  upon  the  associate  justice  who  is  first  in  precedence, 
until  such  disability  is  removed,  or  another  Chief  Justice 
is  appointed  and  duly  qualified.  This  provision  shall  apply 
to  every  associate  justice  who  succeeds  to  the  office  of  Chief 
Justice." 

§  218,  Judicial  Code*  36  Stat.  at  L.  1152,  Comp.  St. 
1911,  p.  221,  1912  Supp.  F.  S.  A.  v.  1,  p.  225.  "The  Chief 
Justice  of  the  Supreme  Court  of  the  United  States  shall 
receive  the  sum  of  fifteen  thousand  dollars  a  year,  and  the 
justices  thereof  shall  receive  the  sum  of  fourteen  thousand 
five  hundred  dollars  a  year  each,  to  be  paid  monthly." 

§  2451.  Clerk. 

§  219,  Judicial  Code?  36  Stat.  at  L.  1152,  Comp.  St. 
1911,  p.  221,  1912  Supp.  F.  8.  A.  v.  1,  p.  225,  "The  Su- 
preme Court  shall  have  power  to  appoint  a  clerk  and  a 
marshal  for  said  court,  and  a  reporter  of  its  decisions." 

§  220,  Judicial  Code,1  36  Stat.  at  L.  1152,  Comp.  St. 
1911,  p.  222,  1912  Supp.  F.  S.  A.  v.  1,  p.  225.  "The  clerk 
of  the  Supreme  Court  shall,  before  he  enters  upon  the  ex- 
ecution of  his  office,  give  bond,  with  sufficient  sureties,  to  be 
approved  by  the  court,  to  the  United  States,  in  the  sum  of 
not  less  than  five  thousand  and  not  more  than  twenty  thou- 
sand dollars,  to  be  determined  and  regulated  by  the  Attorney 
General,  faithfully  to  discharge  the  duties  of  his  office,  and 
seasonably  to  record  the  decrees,  judgments,  and  determina- 
tions of  the  court.  The  Supreme  Court  may  at  any  time, 
upon  the  motion  of  the  Attorney  General,  to  be  made  upon 
thirty  days'  notice,  require  a  new  bond,  or  a  bond  for  an 
increased  amount  within  the  limits  above  prescribed;  and 
the  failure  of  the  clerk  to  execute  the  same  shall  vacate  his 
office.  All  bonds  given  by  the  clerk  shall,  after  approval,  be 
recorded  in  his  office,  and  copies  thereof  from  the  records, 
certified  by  the  clerk  under  seal  of  the  court,  shall  be  com- 

d  Re-enacting  §  676,  R.  S.  Comp.  St.  1901,  p.  558,  4  F.  S.  A.  435,  which 
action  is  repealed  by  §  297,  Judicial  Code. 

«  Re-enacting  §  677,  R.  S.  Rose's  Code,  §§  559,  614.  680,  Comp.  St.  1901, 
p.  559,  4  F.  S.  A.  73,  which  section  is  repealed  by  §  297,  Judicial  Code. 

'Drawn  from  act  of  February  22,  1875,  ch.  95,  Rose's  Code,  §§  575,  628, 
Comp.  St.  1901,  p.  619,  4  F.  S.  A.  83.  Bond  of  clerk.  Howard  v.  United 
States,  184  U.  S.  676,  46  L.  ed.  754.  22  Sup.  Ct.  Rep.  543. 


§  2453  THE  SUPREME  COURT  647 

petent  evidence  in  any  court.     The  original  bonds  shall  be 
filed  in  the  Department  of  Justice." 

§  2452.  Deputies. 

§  221,  Judicial  Code*  36  8 tat.  at  L.  1153,  Comp.  St. 
1911,  p.  222,  1912  Supp.  F.  8.  A.  v.  1,  p.  225.  "One  or 
more  deputies  of  the  clerk  of  the  Supreme  Court  may  be 
appointed  by  the  court  on  the  application  of  the  clerk,  and 
may  be  removed  at  the  pleasure  of  the  court.  In  case  of  the 
death  of  the  clerk,  his  deputy  or  deputies  shall,  unless  re- 
moved, continue  in  office  and  perform  the  duties  of  the  clerk 
in  his  name  until  a  clerk  is  appointed  and  qualified ;  and  for 
the  defaults  or  misfeasances  in  office  of  any  such  deputy, 
whether  in  the  lifetime  of  the  clerk  or  after  his  death,  the 
clerk,  and  his  estate,  and  the  sureties  on  his  official  bond 
shall  be  liable ;  and  his  executor  or  administrator  shall  have 
such  remedy  for  any  such  defaults  or  misfeasances  committed 
after  his  death  as  the  clerk  would  be  entitled  to  if  the  same 
had  occurred  in  his  lifetime." 

§  2453.  Marshal. 

§  219,  Judicial  Code,11  36  Stat.  at  L.  1152,  Comp.  8 tat. 
1911,  p.  221,  1912  Supp.  F.  8.  A.  v.  1,  p.  225.  "The  Su- 
preme Court  shall  have  power  to  appoint  a  clerk  and  a  mar- 
shal for  said  court  and  a  reporter  of  its  decisions." 

§  824,  Judicial  Code,1  36  Stat.  at  L.  1153,  Comp.  St. 
1911,  p.  222,  1912  Supp.  F.  S.  A.  v.  1,  p.  225.  "The  mar- 
shal is  entitled  to  receive  a  salary  at  the  rate  of  four  thousand 
five  hundred  dollars  a  year.  He  shall  attend  the  court  at  its 
sessions;  shall  serve  and  execute  all  process  and  orders  issu- 
ing from  it,  or  made  by  the  Chief  Justice  or  an  associate 
justice  in  pursuance  of  law;  and  shall  take  charge  of  all 
property  of  the  United  States  used  by  the  court  or  its  mem- 
bers. With  the  approval  of  the  Chief  Justice  he  may  appoint 
assistants  and  messengers  to  attend  the  court,  with  the  com- 

K  Re-enacting  §  678,  R.  S.  Rose's  Code,  §  560,  Comp.  St.  1901,  p.  559, 
4  F.  S.  A.  73,  which  section  is  repealed  by  §  297,  Judicial  Code. 

h  For  Annotation  of  this  §  219,  Judicial  Code,  see  footnote  «,  ante,  our 
§  2451. 

1  Re-enacting  §  680,  R.  S.  Rose's  Code,  §§  615,  683,  Comp.  St.  1901,  p.  560. 
4  F.  S.  A.  159,  changing  the  salary  from  $3,500  to  $4,500  a  year.  This 
section  is  repealed  by  §  297,  Judicial  Code. 


648        MONTGOMERY'S  MANUAL  OF  FEDERAL  PROCEDURE    §  2455 

pensation  allowed  to  officers  of  the  House  of  Representatives 
of  similar  grade." 

§  2454.  Supreme  Court  Reporter.  The  duties  of  the  re- 
porter are  defined  in  §  225  of  the  Judicial  Code,  his  salary  and 
allowances  are  designated  in  §  226  of  the  Judicial  Code,  and 
the  distribution  of  reports  and  digests  is  set  out  in  §  227  of  the 
Judicial  Code.  The  cost  of  these  books  and  provision  for  addi- 
tional reports  and  digests  is  made  in  §  228  of  the  Judicial  Code. 
Provision  is  made  for  distribution  of  sets  of  the  Federal  Reporter 
and  Digests  in  §  229  of  the  Judicial  Code.  These  sections  may 
be  found  with  annotations  in  the  Appendix. 

§  2455.  Admission  to  Practice. 

Rule  2  of  the  Supreme  Court  of  the  United  States.  1.  It 
shall  be  requisite  to  the  admission  of  attorneys  or  counselors 
to  practise  in  this  court,  that  they  shall  have  been  such  for 
three  years  past  in  the  supreme  courts  of  the  states  to  which 
they  respectively  belong,  and  that  their  private  and  profes- 
sional character  shall  appear  to  be  fair. 

2.  They  shall  respectively  take  and  subscribe  the  following 
oath  or  affirmation,  viz. : 

I,  —  — ,  do  solemnly  swear  [or  affirm]  that  I  will  de- 

mean myself,  as  an  attorney  and  counselor  of  this  court,  up- 
rightly, and  according  to  law;  and  that  I  will  support  the 
Constitution  of  the  United  States. 

§  255,  Judicial  Code*  36  Stat.  at  L.  1160,  Comp.  St. 
1911,  p.  233,  1912  Supp.  F.  8.  A.  v.  1,  p.  238.  "Any 
woman  who  shall  have  been  a  member  of  the  bar  of  the  high- 
est court  of  any  state  or  territory,  or  of  the  court  of 
appeals  of  the  District  of  Columbia,  for  the  space  of  three 
years,  and  shall  have  maintained  a  good  standing  before 
such  court,  and  who  shall  be  a  person  of  good  moral 
character,  shall,  on  motion,  and  the  production  of  such  record,, 
be  admitted  to  practise  before  the  Supreme  Court  of  the 
United  States." 

J  Re-enacting  act  of  February  15,  1879,  ch.  81,  20  Stat.  at  L.  282,  Rose's 
Code,  §  490,  Con.p.  St.  1901,  p/590,  1  F.  S.  A.  518. 


§    2458  THE    SUPREME    COL'BT  649 

§  2456.  Terms. 

§  230,  Judicial  Code*  36  Stat.  at  L.  1156,  Com  p.  SI. 
1911,  p.  226,  1912  Supp.  F.  8.  A.  v.  1,  p.  229.  "The  Su- 
preme Court  shall  hold  at  the  seat  of  government,  one  term 
annually,  commencing  on  the  second  Monday  in  October, 
and  such  adjourned  or  special  terms  as  it  may  find  necessary 
for  the  despatch  of  business." 

§  2457.  Adjournments. 

§  231,  Judicial  Code,1  36  Stat.  at  L.  1156,  Comp.  St. 
1911,  p.  226,  1912  Supp.  F.  S.  A.  v.  1,  p.  229.  "If,  at  any 
session  of  the  Supreme  Court,  a  quorum  does  not  attend  on 
the  day  appointed  for  holding  it,  the  justices  who  do  attend 
may  adjourn  the  court  from  day  to  day  for  twenty  days 
after  said  appointed  time,  unless  there  be  sooner  a  quorum. 
If  a  quorum  does  not  attend  within  said  twenty  days,  the 
business  of  the  court  shall  be  continued  over  till  the  next 
appointed  session;  and  if,  during  a  term,  after  a  quorum 
has  assembled,  less  than  that  number  attend  on  any  day,  the 
justices  attending  may  adjourn  the  court  from  day  to  day 
until  there  is  a  quorum,  or  may  adjourn  without  day." 

§  232,  Judicial  Code™  36  Stat.  at  L.  1156,  Comp.  St. 
1911,  p.  227,  1912  Supp.  F.  S.  A.  v.  1,  p.  229.  "The  jus- 
tices attending  at  any  term,  when  less  than  a  quorum  is  pres- 
ent, may,  within  the  twenty  days  mentioned  in  the  preceding- 
section,  make  all  necessary  orders  touching  any  suit,  pro- 
ceeding, or  process,  depending  in  or  returned  to  the  court, 
preparatory  to  the  hearing,  trial,  or  decision  thereof." 

§  2458.  Original  Jurisdiction — Issues  of  Fact. 

§  233,  Judicial  Code,"  36  Stat.  at  L.  1156,  Comp.  St. 
1911,  p.  227,  1912  Supp.  F.  S.  A.  v.  1,  p.  229.     "The  Su- 
preme Court  shall  have  exclusive  jurisdiction  of  all  contro- 
ls Re-enacting  §  684,  R.  S.  Rose's  Code,  §  304,  Foster's  Fed.  Prac.   (4th  ed.) 
p.  223,  Comp.  St.  1901,  p.  563,  4  F.  S.  A.  692,  which  section  is  repealed  by 
§  297,  Judicial  Code. 

»  Re-enacting  §  685,  R.  S.  Rose's  Code,  §  305,  Comp.  St.  1901,  p.  563, 
4  F.  S.  A.  692,  which  section  is  repealed  by  §  297,  Judicial  Code. 

m  Re-enacting  §  686,  R.  S.  Comp.  St.  1901,  p.  564,  4  F.  S.  A.  693,  which 
section  is  repealed  by  §  297,  Judicial  Code. 

n  Re-enacting  §  687,  R.  S.  Rose's  Code,  §  36,  Foster's  Fed.  Prac.  (4th  ed.) 
pp.  75,  76,  Comp.  St.  1901,  p.  565,  4  F.  S.  A.  436,  which  section  is  repealed 
by  §  297,  Judicial  Code. 


650        MONTGOMERY'S  MANUAL  OP  FEDERAL  PROCEDURE     §  2459 

versies  of  a  civil  nature  where  a  state  is  a  party,  except  be- 
tween a  state  and  its  citizens,  or  between  a  state  and  citizens 
of  other  states,  or  aliens,  in  which  latter  cases  it  shall  have 
original  but  not  exclusive  jurisdiction.  And  it  shall  have 
exclusively  all  such  jurisdiction  of  suits  or  proceedings 
against  ambassadors  or  other  public  ministers,  or  their  do- 
mestics or  domestic  servants,  as  a  court  of  law  can  have  con- 
sistently with  the  law  of  nations;  and  original,  but  not  ex- 
clusive, jurisdiction,  of  all  suits  brought  by  ambassadors, 
or  other  public  ministers,  or  in  which  a  consul  or  vice  con- 
sul is  a  party." 

§  285,  Judicial  Code,0  36  Stat.  at  L.  1156,  Comp.  St. 
1911,  p.  227,  1912  Supp.  F.  8.  A.  v.  1,  p.  230.  "The  trial 
of  issues  of  fact  in  the  Supreme  Court,  in  all  actions  of  law 
against  citizens  of  the  United  States  shall  be  by  jury." 

§  2459.  Prohibition  and  Mandamus. 

§  234,  Judicial  Code*  36  Stat.  at  L.  1156,  Comp.  St. 
1911,  p.  227,  1912  Supp.  F.  S.  A.  v.  1,  p.  230.  "The  Su- 
preme Court  shall  have  power  to  issue  writs  of  prohibition 
to  the  district  courts,  when  proceeding  as  courts  of  admir- 
alty and  maritime  jurisdiction;  and  writs  of  mandamus, 
in  cases  warranted  by  the  principles  and  usages  of  law,  to 
any  courts  appointed  under  the  authority  of  the  United 
States,  or  to  persons  holding  office  under  the  authority  of 
the  United  States,  where  a  state,  or  an  ambassador,  or  other 
public  minister,  or  a  consul,  or  vice  consul  is  a  party." 

o  Re-enacting  §  689,  R.  S.,  Rose's  Code,  §  913,  Comp.  St.  1901,  p.  565, 
4  F.  S.  A.  443,  which  section  is  repealed  by  §  297,  Judicial  Code.  In  gen- 
eral, Capital  Traction  Co.  v.  Hof,  174  U.  S.  1,  43  L.  ed.  873,  19  Sup.  Ct. 
Rep.  580. 

P  For  Annotation  of  this  §  234,  Judicial  Code,  see  footnote  «,  ante,  our 
§  2021. 


APPENDIX. 


PAGE 

1.  JUDICIAL,  CODE  IN  FOKCE  JANUARY  1,  1912 655 

2.  SUPREME   COURT  RULES    767 

3.  CIRCUIT  COURTS  OF  APPEALS  RULES 793 

4.  RULES  IN  ADMIRALTY    871 

5.  EQUITY  RULES  IN   FORCE  FEBRUARY   1,    1913.     ANNO- 

TATED        879 

651 


JL  1. 


THE  JUDICIAL  CODE 
IN  EFFECT  JANUARY  1,  1912. 


653 


APPENDIX. 


THE  JUDICIAL  CODE. 


CHAPTER   ONE. 


DISTRICT    COURTS ORGANIZATION. 


Sec. 

1.  District    courts    established;    ap- 

pointment    and     residence    of 
judges. 

2.  Salaries   of   district   judges. 

3.  Clerks. 

4.  Deputy  clerks. 

5.  Criers  and  bailiffs. 

6.  Records;   where  kept. 

7.  Efl'ect  of  altering  terms. 

8.  Trials    not    discontinued    by    new 

term. 

9.  Courts  always  open  as  courts  of 

admiralty  and  equity. 

10.  Monthly    adjournments    for    trial 

of  criminal  causes. 

11.  Special  terms. 

12.  Adjournment    in    case    of    nonat- 

tendance   of   judge. 

13.  Designation   of  another   judge   in 

case  of  disability  of  judge. 

14.  Designation  of  another  judge   in 

case    of    an    accumulation    of 
business. 


§  1.  In  each  of  the  districts  described  in  chapter  five,  there  shall  be  a 
court  called  a  district  court,  for  which  there  shall  be  appointed  one  judge, 
to  be  called  a  district  judge;  except  that  in  the  northern  district  of  Cali- 
fornia, the  northern  district  of  Illinois,  the  district  of  Maryland,  the  dis- 
trict of  Minnesota,  the  district  of  Nebraska,  the  district  of  New  Jersey, 
the  eastern  district  of  New  York,  the  northern  and  southern  districts  of 
Ohio,  the  district  of  Oregon,  the  eastern  and  western  districts  of  Penn- 
sylvania, and  the  western  district  of  Washington,  there  shall  be  an  additional 
district  judge  in  each,  and  in  the  southern  district  of  New  York,  three 

655 


Sec. 

15.  When  designation  to  be  made  by 

Chief   Justice. 

16.  New     appointment     and     revoca- 

tion. 

17.  Designation   of   district  judge   in 

aid  of  another  judge. 

18.  When  circuit  judge  may  be  des- 

ignated to  hold  district  court. 

19.  Duty  of  district  and  circuit  judge 

in  such  cases. 

20.  When   district  judge   is   interest- 

ed or  related  to  parties. 

21.  When    affidavit    of   personal   bias 

or  prejudice  of  judge  is  filed. 

22.  Continuance   in    case    of   vacancy 

in  office. 

23    Districts    having   more   than   one 
judge;  division  of  business. 


656  APPENDIX 

additional  district  judges:  Provided,  That  whenever  a  vacancy  shall  occur 
in  the  office  of  the  district  judge  for  the  district  of  Maryland,  senior  in 
commission,  such  vacancy  shall  not  be  filled,  and  thereafter  there  shall  be 
but  one  district  judge  in  said  district:  Provided  further,  That  there  shall 
be  one  judge  for  the  eastern  and  western  districts  of  South  Carolina,  one 
judge  for  the  eastern  and  middle  districts  of  Tennessee,  and  one  judge  for 
the  northern  and  southern  districts  of  Mississippi:  Provided  further, 
That  the  district  judge  for  the  middle  district  of  Alabama  shall  continue 
as  heretofore  to  be  a  district  judge  for  the  northern  district  thereof.  Every 
district  judge  shall  reside  in  the  district  or  one  of  the  districts  for  which 
he  is  appointed,  and  for  offending  against  this  provision  shall  be  deemed 
guilty  of  a  high  misdemeanor. 

Annotated,  our  §  22  note  a. 

§  2.  Each  of  the  district  judges  shall  receive  a  salary  of  six  thousand 
dollars  a  year,  to  be  paid  in  monthly  instalments. 

36  Stat.  at  L.  1087,  Comp.  St.  1911,  p.  129,  1912  Supp.  F.  S.  A.  v.  1.  p. 
133.  Superseding  act  of  Feb.  12,  1903,  ch.  54",  32  Stat.  at  L.  825,  Rose's 
Code,  §  469,  10  F.  S.  A.  198,  and  §  554,  R.  S.,  4  F.  S.  A.  217,  which  is  repealed 
by  §  297,  Judicial  Code. 

§  3.  A  clerk  shall  be  appointed  for  each  district  court  by  the  judge  there- 
of,   except   in   cases    otherwise    provided    for   by    law. 
Annotated,  our  §  33  note  m. 

§  4.  Except  as  otherwise  specially  provided  by  law,  the  clerk  of  the  dis- 
trict court  for  each  district  may,  with  the  approval  of  the  district  judge 
thereof,  appoint  such  number  of  deputy  clerks  as  may  be  deemed  neces- 
sary by  such  judge,  who  may  be  designated  to  reside  and  maintain  offices 
at  such  places  of  holding  court  as  the  judge  may  determine.  Such  deputies 
may  be  removed  at  the  pleasure  of  the  clerk  appointing  them,  with  the 
concurrence  of  the  district  judge.  In  case  of  the  death  of  the  clerk,  his 
deputy  or  deputies  shall,  unless  removed,  continue  in  office  and  perform 
the  duties  of  the  clerk,  in  his  name,  until  a  clerk  is  appointed  and  quali- 
fied; and  for  the  default  or  misfeasances  in  office  of  any  such  deputy,  whether 
in  the  lifetime  of  the  clerk  or  after  his  death,  the  clerk  and  his  estate  and 
the  sureties  on  his  official  bond  shall  be  liable;  and  his  executor  or  admin- 
istrator shall  have  such  remedy  for  any  such  default  or  misfeasances  com- 
mitted after  his  death  as  the  clerk  would  be  entitled  to  if  the  same  had 
occurred  in  his  lifetime. 

Annotated,  our  §  34  note  n. 

§  5.  The  district  court  for  each  district  may  appoint  a  crier  for  the 
court;  and  the  marshal  may  appoint  such  number  of  persons,  not  exceeding 
five,  as  the  judge  may  determine,  to  wait  upon  the  grand  and  other  juries, 
and  for  other  necessary  purposes. 

Annotated,  our  §  38  note  o. 

§  6.  The  records  of  a  district  court  shall  be  kept  at  the  place  where  the 
court  is  held.  When  it  is  held  at  more  than  one  place  in  any  district  and 
the  place  of  keeping  the  records  is  not  specially  provided  by  law,  they  shall 
be  kept  at  either  of  the  places  of  holding  the  court  which  may  be  designated 
by  the  district  judge. 

Annotated,  our  §  68  note  h. 


JUDICIAL    CODE  657 

i 

§  7.  No  action,  suit,  proceeding,  or  process  in  any  district  court  shall 
abate  or  be  rendered  invalid  by  reason  of  any  act  changing  the  time  of 
holding  such  court,  but  the  same  shall  be  deemed  to  be  returnable  to,  pend- 
ing, and  triable  in  the  terms  established  next  after  the  return  day  thereof. 

Annotated,  our   §  67   note  g. 

'  §  8.  When  the  trial  or  hearing  of  any  cause,  civil  or  criminal,  in  a  dis- 
trict court  has  been  commenced  and  is  in  progress  before  a  jury  or  the 
court,  it  shall  not  be  stayed  or  discontinued  by  the  arrival  of  the  time  fixed 
by  law  for  another  session  of  said  court;  but  the  court  may  proceed  therein 
and  bring  it  to  a  conclusion  in  the  same  manner  and  with  the  same  effect 
as  if  another  stated  term  of  the  court  had  not  intervened. 
Annotated,  our  §  65  note  e. 

§  9.  The  district  courts,  as  courts  of  admiralty  and  as  courts  of  equity, 
shall  be  deemed  always  open  for  the  purpose  of  filing  any  pleading,  of 
issuing  and  returning  mesne  and  final  process,  and  of  making  and  directing 
all  interlocutory  motions,  orders,  rules,  and  other  proceedings  preparatory 
to  the  hearing,  upon  their  merits,  of  all  causes  pending  therein.  Any  dis- 
trict judge  may,  upon  reasonable  notice  to  the  parties,  make,  direct,  and 
award,  at  chambers  or  in  the  clerk's  office,  and  in  vacation  as  well  as  in 
term,  all  such  process,  commissions,  orders,  rules,  and  other  proceedings, 
whenever  the  same  are  not  grantable  of  course,  according  to  the  rules  and 
practice  of  the  court. 

Annotated,  our  §  61  note  a. 

§  10.  District   courts    shall    hold    monthly   adjournments    of   their    regular 
terms,  for  the  trial  of  criminal   causes,   when   their   business   requires  it  to 
be  done,  in  order  to  prevent  undue  expenses  and  delays  in  such  cases. 
Annotated  our  §  66  note  f. 

§  11.  A  special  term  of  any  district  court  may  be  held  at  the  same  place 
where  any  regular  term  is  held,  or  at  such  other  place  in  the  district  as  the 
nature  of  the  business  may  require,  and  at  such  time  and  upon  such  notice 
as  may  be  ordered  by  the  district  judge.  Any  business  may  be  transacted 
at  such  special  term  which  might  be  transacted  at  a  regular  term. 
Annotated,  our  §  62  note  b. 

§  12.  If  the  judge  of  any  district  court  is  unable  to  attend  at  the  com- 
mencement of  any  regular,  adjourned,  or  special  term,  or  any  time  during 
such  term,  the  court  may  be  adjourned  by  the  marshal,  or  clerk,  by  virtue  of 
a  written  order  directed  to  him  by  the  judge,  to  the  next  regular  term,  or 
to  any  earlier  day,  as  the  order  may  direct. 
Annotated,  our  §  63  note  c. 

§  13.  When  any  district  judge  is  prevented,  by  any  disability,  from  hold- 
ing any  stated  or  appointed  term  of  his  district  court,  and  that  fact  is 
made  to  appear  by  the  certificate  of  the  clerk,  under  the  seal  of  the  court, 
to  any  circuit  judge  of  the  circuit  in  which  the  district  lies,  or,  in  the 
absence  of  all  the  circuit  judges,  to  the  circuit  justice  of  the  circuit  in 
which  the  district  lies,  any  such  circuit  judge  or  justice  may,  if  in  his 
judgment  the  public  interests  so  require,  designate  and  appoint  the  judge 
of  any  other  district  in  the  same  circuit  to  hold  said  court,  and  to  dis- 
charge all  the  judicial  duties  of  the  judge  so  disabled,  during  such  dis- 
ability. Whenever  it  shall  be  certified  by  any  such  circuit  judge  or,  in 
Montg.— 42. 


658  APPENDIX 

his  absence,  by  the  circuit  justice  of  the  circuit  in  which  the  district  lies, 
that  for  any  sufficient  reason  it  is  impracticable  to  designate  and  appoint 
a  judge  of  another  district  within  the  circuit  to  perform  the  duties  of 
such  disabled  judge,  the  chief  justice  may,  if  in  his  judgment  the  public 
interests  so  require,  designate  and  appoint  the  judge  of  any  district  in  an- 
other circuit  to  hold  said  court  and  to  discharge  all  the  judicial  duties 
of  the  judge  so  disabled,  during  such  disability.  Such  appointment  shall 
be  filed  in  the  clerk's  office,  and  entered  on  the  minutes  of  the  said  dis- 
trict court,  and  a  certified  copy  thereof,  under  the  seal  of  the  court,  shall 
be  transmitted  by  the  clerk  to  the  judge  so  designated  and  appointed. 
Annotated  our  §  24  note  c. 

§  14.  When,  from  the  accumulation  or  urgency  of  business  in  any  district 
court,  the  public  interests  require  the  designation  and  appointment  herein- 
after provided,  and  the  fact  is  made  to  appear,  by  the  certificate  of  the 
clerk,  under  the  seal  of  the  court,  to  any  circuit  judge  of  the  circuit  in 
which  the  district  lies,  or,  in  the  absence  of  all  the  circuit  judges,  to  the 
circuit  justice  of  the  circuit  in  which  the  district  lies,  such  circuit  judge 
or  justice  may  designate  and  appoint  the  judge  of  any  other  district  in 
the  same  circuit  to  have  and  exercise  within  the  district  first  named  the 
same  powers  that  are  vested  in  the  judge  thereof.  Each  of  the  said  district 
judges  may,  in  case  of  such  appointment,  hold  separately  at  the  same  time 
a  district  court  in  such  district,  and  discharge  all  the  judicial  duties  of 
the  district  judge  therein. 

Annotated,  our  §  25  note  d. 

§  15.  If  all  the  circuit  judges  and  the  circuit  justice  are  absent  from 
the  circuit,  or  are  unable  to  execute  the  provisions  of  either  of  the  two 
preceding  sections,  or  if  the  district  judge  so  designated  is  disabled  or  neg- 
lects to  hold  the  court  and  transact  the  business  for  which  he  is  designated, 
the  clerk  of  the  district  court  shall  certify  the  fact  to  the  Chief  Justice 
of  the  United  States,  who  may  thereupon  designate  and  appoint  in  the 
manner  aforesaid  the  judge  of  any  district  within  such  circuit  or  within 
any  other  circuit;  and  said  appointment  shall  be  transmitted  to  the  clerk 
and  be  acted  upon  by  him  as  directed  in  the  preceding  section. 
Annotated,  our  §  26  note  f. 

§  16.  Any  such  circuit  judge,  or  circuit  justice,  or  the  Chief  Justice,  as 
the  case  may  be,  may,  from  time  to  time,  if  in  his  judgment  the  public  inter- 
ests so  require,  make  a  new  designation  and  appointment  of  any  other  district 
judge,  in  the  manner,  for  the  duties,  and  with  the  powers  mentioned  in  the 
three  preceding  sections,  and  revoke  any  previous  designation  and  ap- 
pointment. 

Annotated,  our  §  27  note  g. 

§  17.  It  shall  be  the  duty  of  the  senior  circuit  judge  then  present  in  the 
circuit,  whenever  in  his  judgment  the  public  interest  so  requires,  to  designate 
and  appoint,  in  the  manner  and  with  the  powers  provided  in  section  four- 
teen, the  district  judge  of  any  judicial  district  within  his  circuit  to  hold 
a  district  court  in  the  place  or  in  aid  of  any  other  district  judge  within 
the  same  circuit. 

Annotated,  our  §  25  note  e. 

§  18.  Whenever,  in  the  judgment  of  the  senior  circuit  judge  of  the  circuit 


JUDICIAL    CODE  659 

in  which  the  district  lies,  or  of  the  circuit  justice  assigned  to  such  circuit, 
or  of  the  Chief  Justice,  the  public  interest  shall  require,  the  said  judge,  or 
associate  justice,  or  Chief  Justice,  shall  designate  and  appoint  any  circuit 
judge  of  the  circuit  to  hold  said  district  court. 

As  amended  by  Act  of  October  3,  1913,  ch.  8.     See  our  §  28. 

Annotated,  our  §  28  note  h. 

§  19.  It  shall  be  the  duty  of  the  district  or  circuit  judge  who  is  desig- 
nated and  appointed  under  either  of  the  six  preceding  sections,  to  discharge 
all  the  judicial  duties  for  which  he  is  so  appointed,  during  the  time  for  which 
he  is  so  appointed;  and  all  the  acts  and  proceedings  in  the  courts  held  by 
him,  or  by  or  before  him,  in  pursuance  of  said  provisions,  shall  have  the 
same  effect  and  validity  as  if  done  by  or  before  the  district  judge  of  the 
said  district. 

Annotated,  our  §  29  note  i. 

§  20.  Whenever  it  appears  that  the  judge  of  any  district  court  is  in 
any  way  concerned  in  interest  in  any  suit  pending  therein,  or  has  been 
of  counsel  or  is  a  material  witness  for  either  party,  or  is  so  related  to 
or  connected  with  either  party  as  to  render  it  improper,  in  his  opinion, 
for  him  to  sit  on  the  trial,  it  shall  be  his  duty,  on  application  by  either 
party,  to  cause  the  fact  to  be  entered  on  the  records  of  the  court;  and 
also  an  order  that  an  authenticated  copy  thereof  shall  be  forthwith  certi- 
fied to  the  senior  circuit  judge  for  said  circuit  then  present  in  the  circuit; 
and  thereupon  such  proceedings  shall  be  had  as  are  provided  in  section 
fourteen. 

Annotated,  our  §  30  note  j. 

§  21.  Whenever  a  party  to  any  action  or  proceeding,  civil  or  criminal, 
shall  make  and  file  an  affidavit  that  the  judge  before  whom  the  action 
or  proceeding  is  to  be  tried  or  heard  has  a  personal  bias  or  prejudice 
either  against  him  or  in  favor  of  any  opposite  party  to  the  suit,  such 
judge  shall  proceed  no  further  therein,  but  another  judge  shall  be  desig- 
nated in  the  manner  prescribed  in  the  section  last  preceding,  or  chosen 
in  the  manner  prescribed  in  section  twenty-three,  to  hear  such  matter. 
Every  such  affidavit  shall  state  the  facts  and  the  reasons  for  the  belief 
that  such  bias  or  prejudice  exists,  and  shall  be  filed  not  less  than  ten 
days  before  the  beginning  of  the  term  of  the  court,  or  good  cause  shall  be 
shown  for  the  failure  to  file  it  within  such  time.  No  party  shall  be 
entitled  in  any  case  to  file  more  than  one  such  affidavit;  and  no  such 
affidavit  shall  be  filed  unless  accompanied  by  a  certificate  of  counsel  of 
record  that  such  affidavit  and  application  are  made  in  good  faith.  The 
same  proceedings  shall  be  had  when  the  presiding  judge  shall  file  with 
the  clerk  of  the  court  a  certificate  that  he  deems  himself  unable  for  any 
reason  to  preside  with  absolute  impartiality  in  the  pending  suit  or  action. 

Annotated,  our  §  31  note  k. 

§  22.  When  the  office  of  judge  of  any  district  court  becomes  vacant, 
all  process,  pleadings,  and  proceedings  pending  before  such  court  shall, 
if  necessary,  be  continued  by  the  clerk  thereof  until  such  times  as  a  judge 
shall  be  appointed,  or  designated  to  hold  such  court;  and  the  judge  so 
designated,  while  holding  such  court,  shall  possess  the  powers  conferred 
by,  and  be  subject  to  the  provisions  contained  in,  section  nineteen. 

Annotated,  our  §  64  note  d. 


060 


APPENDIX 


§  23.  In  districts  having  more  than  one  district  judge,  the  judges  may 
agree  upon  the  division  of  business  and  assignment  of  cases  for  trial  in 
said  district;  but  in  case  they  do  not  so  agree,  the  senior  circuit  judge  of 
the  circuit  in  which  the  district  lies,  shall  make  all  necessary  orders  for  the 
division  of  business  and  the  assignment  of  cases  for  trial  in  said  district. 
Annotated,  our  §  23  note  b. 


CHAPTER  TWO. 


DISTRICT   COURTS — JURISDICTION. 


Sec. 

24.  Original    jurisdiction. 

Par.  1.  Where  the  United 
States  are  plain- 
tiffs; and  of  civil 
suits  at  common 
law  or  in  ecfiiity. 

2.  Of      crimes    -arid      of- 

fenses. 

3.  Of    admiralty    causes, 

seizures,   and   prizes. 

4.  Of    suits    under    any 

law  relating  to  the 
slave  trade. 

5.  Of   cases   under    inter- 

nal revenue,  cus- 
toms, and  tonnage 
laws. 

6.  Of   suits   under   postal 

laws. 

7.  Of     suits     under     the 

patent,  tne  copy- 
right, and  the 
trade-mark  laws. 

8.  Of   suits   for  violation 

of  interstate  com- 
merce laws. 

9.  Of   penalties   and    for- 

feitures. >«•".    13 

10.  Of     suits     on     deben- 

tures. 

11.  Of    suits    for    injuries 

on  account  of  acts 
done  under  laws  of 
the  United  States. 

12.  Of     suits      concerning 

civil  rights. 

13.  Of   suits    against   per- 

sons having  knowl- 
edge of  conspiracy, 
etc. 

14.  Of     suits     to     redress 

the  deprivation,  un- 
der color  of  law,  of 
civil  rights. 


Sec. 

24.  Original  jurisdiction — Cont'd. 

Par.  15.  Of    suits    to    recover 
.,fi.      ..certain  offices. 

16.  Of    suits    against    na- 

tional-banking   asso- 
ciations. 

17.  Of  suits  by  aliens  for 

torts. 

18.  Of    suits   against   con- 

suls    and     vice-con- 
suls. 

19.  Of   suits   and   proceed- 

ings    in     bankrupt- 
cy. 

20.  Of    suits    against    the 

United  States. 

21.  Of    suits    for    the    un- 

lawful    inclosure    of 
public  lands. 

22.  Of   suits   under   immi- 

gration       and      con- 
tract-labor   laws. 

23.  Of  suits  against  trusts, 

monopolies,    and   un- 
lawful  combinations. 

24.  Of  suits  concerning  al- 

lotments  of   land   to 
Indians. 

25.  Of       partition       suits 

where  United   States 
is  joint  tenant. 

25.  Appellate  jurisdiction  under  Chi- 

nese-exclusion laws. 

26.  Appellate    jurisdiction    over    Yel- 

lowstone National   Park. 

27.  Jurisdiction    of    crimes    on    Indi- 

an  reservations   in   South   Da- 
kota. 


JUDICIAL    CODE  661 

§  24.  The  district  courts  shall  have  original  jurisdiction  as  follows: 

First.  Of  all  suits  of  a  civil  nature,  at  common  law  or  in  equity,  brought 
by  the  United  States,  or  by  any  officer  thereof  authorized  by  law  to  sue, 
or  between  citizens  of  the  same  state  claiming  lands  under  grants  from 
different  states;  or,  where  the  matter  in  controversy  exceeds,  exclusive 
.  of  interest  and  costs,  the  sum  or  value  of  three  thousand  dollars,  and 
(a)  arises  under  the  Constitution  or  laws  of -the  United  States,  or  treaties 
made,  or  which  shall  be  made,  under  their  authority,  or  (b)  is  between 
citizens  of  different  states,  or  (c)  is  between  citizens  of  a  state  and  foreign 
states,  citizens,  or  subjects.  No  district  court  shall  have  cognizance  of 
any  suit  (except  upon  foreign  bills  of  exchange)  to  recover  upon  any 
promissory  note  or  other  chose  in  action  in  favor  of  any  assignee,  or  of 
any  subsequent  holder  if  such  instrument  be  payable  to  bearer  and  be  not 
made  by  any  corporation,  unless  such  suit  might  have  been  prosecuted  in 
such  court  to  recover  upon  said  note  or  other  chose  in  action  if  no  assign- 
ment had  been  made :  1'rovided,  however,  That  the  foregoing  provision  as 
to  the  sum  or  value  of  the  matter  in  controversy  shall  not  be  construed 
to  apply  to  any  of  the  cases  mentioned  in  the  succeeding  paragraphs  of 
this  section. 

Second.  Of  all  crimes  and  offenses  cognizable  under  the  authority  of  the 
United  States.  ';'.* 

Third.  Of  all  civil  causes  of  admiralty  and  maritime  jurisdiction,  saving 
to  suitors  in  all  cases  the  right  of  a  common-law  remedy  where  the  common 
law  is  competent  to  give  it;  of  all  seizures  on  land  or  waters  not  within 
admiralty  and  maritime  jurisdiction;  of  all  prizes  brought  into  the  United 
States;  and  of  all  proceedings  for  the  condemnation  of  property  taken  as 
prize. 

Fourth.    Of  all  suits  arising  under  any  law  relating  to  the  slave  trade. 

Fifth.  Of  all  cases  arising  under  any  law  providing  for  internal  revenue, 
or  from  revenue  from  imports  or  tonnage,  except  those  cases  arising  under 
any  law  providing  revenue  from  imports,  jurisdiction  of  which  has  been 
conferred  upon  the  court  of  customs  appeals. 

Sixth.   Of  all  cases  arising  under  the  postal  laws. 

Seventh.  Of  all  suits  at  law  or  in  equity  arising  under  the  patent,  the 
copyright,  and  the  trade-mark  laws. 

Eighth.  Of  all  suits  and  proceedings  arising  under  any  law  regulating 
commerce,  except  those  suits  and  proceedings  exclusive  jurisdiction  of  which 
has  been  conferred  upon  the  commerce  court. 

Ninth.  Of  all  suits  and  proceedings  for  the  enforcement  of  penalties 
and  forfeitures  incurred  under  any  law  of  the  United  States. 

Tenth.  Of  all  suits  by  the  assignee  of  any  debenture  for  drawback  of 
ditties,  issued  under  any  law  for  the  collection  of  duties,  against  the  person 
to  whom  such  debenture  was  originally  granted,  or  against  any  indorser 
thereof,  to  recover  the  amount  of  such  debenture. 

Eleventh.  Of  all  suits  brought  by  any  person  to  recover  damages  for 
any  injury  to  his  person  or  property  on  account  of  any  act  done  by  him, 
under  any  law  of  the  United  States,  for  the  protection  or  collection  of 
any  of  the  revenues  thereof,  or  to  enforce  the  right  of  citizens  of  the 
United  States  to  vote  in  the  several  states. 


662  APPENDIX 

Twelfth.  Of  all  suits  authorized  by  law  to  be  brought  by  any  person  for 
the  recovery  of  damages  on  account  of  any  injury  to  his  person  or  prop- 
erty, or  of  the  deprivation  of  any  right  or  privilege  of  a  citizen  of  the 
United  States,  by  any  act  done  in  furtherance  of  any  conspiracy  mentioned 
in  section  nineteen  hundred  and  eighty,  Revised  Statutes. 

Thirteenth.  Of  all  suits  authorized  by  law  to  be  brought  against  any 
person  who,  having  knowledge  that  any  of  the  wrongs  mentioned  in  section 
nineteen  hundred  and  eighty,  Revised  Statutes,  are  about  to  be  done,  and, 
having  power  to  prevent  or  aid  in  preventing  the  same,  neglects  or  refuses 
so  to  do,  to  recover  damages  for  any  such  wrongful  act. 

Fourteenth.  Of  all  suits  at  law  or  in  equity  authorized  by  law  to  be 
brought  by  any  person  to  redress  the  deprivation,  under  color  of  any  law, 
statute,  ordinance,  regulation,  custom,  or  usage  of  any  state,  of  any  right, 
privilege,  or  immunity,  secured  by  the  Constitution  of  the  United  States, 
or  of  any  right  secured  by  any  law  of  the  United  States  providing  for  equal 
rights  of  citizens  of  the  United  States,  or  of  all  persons  within  the  juris- 
diction of  the  United  States. 

Fifteenth.  Of  all  suits  to  recover  possession  of  any  office,  except  that  of 
elector  of  President  or  Vice-President,  Representative  in  or  Delegate  to 
Congress,  or  member  of  a  state  legislature,  authorized  by  law  to  be  brought, 
wherein  it  appears  that  the  sole  question  touching  the  title  to  such  office 
arises  out  of  the  denial  of  the  right  to  vote  to  any  citizen  offering  to 
vote,  on  account  of  race,  color,  or  previous  condition  of  servitude;  Provided, 
That  such  jurisdiction  shall  extend  only  so  far  as  to  determine  the  rights 
of  the  parties  to  such  office  by  reason  of  the  denial  of  the  right  guaranteed 
by  the  Constitution  of  the  United  States,  and  secured  by  any  law,  to 
enforce  the  right  of  citizens  of  the  United  States  to  vote  in  all  the  states. 

Sixteenth.  Of  all  cases  commenced  by  the  United  States,  or  by  direc- 
tion of  any  officer  thereof,  against  any  national  banking  association,  and 
cases  for  winding  up  the  affairs  of  any  such  bank;  and  of  all  suits  brought 
by  any  banking  association  established  in  the  district  for  which  the  court 
is  held,  under  the  provisions  of  title  "National  Banks,"  Revised  Statutes, 
to  enjoin  the  Comptroller  of  the  Currency,  or  any  receiver  acting  under 
his  direction,  as  provided  by  said  title.  And  all  national  banking  asso- 
ciations established  under  the  laws  of  the  United  States  shall,  for  the 
purposes  of  all  other  actions  by  or  against  them,  real,  personal,  or  mixed, 
and  all  suits  in  equity,  be  deemed  citizens  of  the  states  in  which  they  are 
respectively  located. 

Seventeenth.  Of  all  suits  brought  by  any  alien  for  a  tort  only,  in  viola- 
tion of  the  laws  of  nations  or  of  a  treaty  of  the  United  States. 

Eighteenth.    Of  all  suits  against  consuls  and  vice  consuls. 

Nineteenth.    Of  all  matters   and   proceedings   in   bankruptcy. 

Twentieth.  Concurrent  with  the  court  of  claims,  of  all  claims  not  ex- 
ceeding ten  thousand  dollars  founded  upon  the  Constitution  of  the  United 
States  or  any  law  of  Congress,  or  upon  any  regulation  of  an  Executive 
Department,  or  upon  any  contract,  express  or  implied,  with  the  government 
of  the  United  States,  or  for  damages,  liquidated  or  unliquidated,  in  cases 
not  sounding  in  tort,  in  respect  to  which  claims  the  party  would  be  entitled 
to  redress  against  the  United  States,  either  in  a  court  of  law,  equity,  or 


JUDICIAL   CODE  663 

admiralty,  if  the  United  States  were  suable,  and  of  all  set-offs,  counter- 
claims, claims  for  damages,  whether  liquidated  or  unliquidated,  or  other 
demands  whatsoever  on  the  part  of  the  government  of  the  United  States 
against  any  claimant  against  the  government  in  said  court:  Provided, 
however,  That  nothing  in  this  paragraph  shall  be  construed  as  giving  to 
Gather  the  district  courts  or  the  court  of  claims  jurisdiction  to  hear  and 
determine  claims  growing  out  of  the  late  Civil  War,  and  commonly  known 
as  "war  claims,"  or  to  hear  and  determine  other  claims  which  had  been 
rejected  or  reported  on  adversely  prior  to  the  third  day  of  March,  eighteen 
hundred  and  eighty-seven,  by  any  court,  department,  or  commission  au- 
thorized to  hear  and  determine  the  same,  or  to  hear  and  determine  claims 
for  pensions;  or  as  giving  to  the  district  courts  jurisdiction  of  cases 
brought  to  recover  fees,  salary,  or  compensation  for  official  services  of 
officers  of  the  United  States  or  brought  for  such  purpose  by  persons  claim- 
ing as  such  officers  or  as  assignees  or  legal  representatives  thereof;  but 
no  suit  pending  on  the  twenty-seventh  day  of  June,  eighteen  hundred  and 
ninety-eight,  shall  abate  or  be  affected  by  this  provision:  And  provided 
further,  That  no  suit  against  the  government  of  the  United  States  shall 
be  allowed  under  this  paragraph  unless  the  same  shall  have  been  brought 
within  six  years  after  the  right  accrued  for  which  the  claim  is  made: 
Provided,  That  the  claims  of  married  women,  first  accrued  during  marriage, 
of  persons  under  the  age  of  twenty-one  years,  first  accrued  during  minority, 
and  of  idiots,  lunatics,  insane  persons,  and  persons  beyond  the  seas  at  the 
time  the  claim  accrued,  entitled  to  the  claim,  shall  not  be  barred  if  the  suit 
be  brought  within  three  years  after  the  disability  has  ceased;  but  no 
other  disability  than  those  enumerated  shall  prevent  any  claim  from  being 
barred,  nor  shall  any  of  the  said  disabilities  operate  cumulatively.  All 
suits  brought  and  tried  under  the  provisions  of  this  paragraph  shall  be 
tried  by  the  court  without  a  jury. 

Twenty-first.  Of  proceedings  in  equity,  by  writ  of  injunction,  to  restrain 
violations  of  the  provisions  of  laws  of  the  United  States  to  prevent  the 
unlawful  inclosure  of  public  lands;  and  it  shall  be  sufficient  to  give  the 
court  jurisdiction  if  service  of  original  process  be  had  in  any  civil  pro- 
ceeding on  any  agent  or  employee  having  charge  or  control  of  the  in- 
closure. 

Twenty-second.  Of  all  suits  and  proceedings  arising  under  any  law 
regulating  the  immigration  of  aliens,  or  under  the  contract  labor  laws. 

Twenty-third.  Of  all  suits  and  proceedings  arising  under  any  law  to 
protect  trade  and  commerce  against  restraints  and  monopolies. 

Twenty-fourth.  Of  all  actions,  suits,  or  proceedings  involving  the  right 
of  any  person,  in  whole  or  in  part  of  Indian  blood  or  descent,  to  any  allot- 
ment of  land  under  any  law  or  treaty. 

Twenty-fifth.  Of  suits  in  equity  brought  by  any  tenant  in  common  or 
joint  tenant  for  the  partition  of  lands  in  cases  where  the  United  States 
is  one  of  such  tenants  in  common  or  joint  tenants,  such  suits  to  be  brought 
in  the  district  in  which  such  land  is  situate. 

Annotated,  our  §  194  note  b.    Referred  to  in  our  §§  216,  230,  237, 
261,  263,  351,  381,  2100. 

§  25.  The   district   courts   shall   have   appellate  jurisdiction    of   the  judg- 


664:  APPENDIX 

mcnts  and   orders   of  United   States   commissioners   in   cases   arising   under 
the  Chinese  exclusion  laws. 

Annotated,  our  §  202  note  c. 

§  26.  The  district  court  for  the  district  of  Wyoming  shall  have  jurisdic- 
tion of  all  felonies  committed  within  the  Yellowstone  National  Park  and 
appellate  jurisdiction  of  judgments  in  cases  of  conviction  before  the  com- 
missioner authorized  to  be  appointed  under  section  five  of  an  act  entitled 
"An  Act  to  Protect  the  Birds  and  Animals  in  Yellowstone  National  Park, 
and  to  Punish  Crimes  in  said  Park,  and  for  Other  Purposes,"  approved 
May  seventh,  eighter-  hundred  and  ninety-four. 

Annotated,  our  §  203  note  d. 

§  27.  The  district  court  of  the  United  States  for  the  district  of  South 
Dakota  shall  have  jurisdiction  to  hear,  try,  and  determine  all  actions  and  pro- 
ceedings in  which  any  person  shall  be  charged  with  the  crime  of  murder,  man- 
slaughter, rape,  assault  with  intent  to  kill,  arson,  burglary,  larceny,  or 
assault  with  a  dangerous  weapon,  committed  within  the  limits  of  any  Indian 
reservation  in  the  state  of  South  Dakota. 

Annotated,  our  §  204  note  e. 


CHAPTER  THREE. 
DISTRICT   COURTS — REMOVAL   OF   CAUSES. 

Sec.  Sec. 

28.  Removal   of   suits   from   state   to  34.  Removal  of  suits  by  aliens. 

United   States   district   courts.  35.  When    copies    of    records   are   re- 

20.  Procedure    for    removal.  fused  by  clerk  of  state  court. 

30.  Suits  under  grants  of  land  from  36.  Previous    attachment    bonds,    or- 

difTerent   states.  ders,  etc.,  remain  valid. 

31.  Removal    of    causes    against    per-       37.  Suits     improperly      in      district' 

sons    denied    any    civil    rights,  court  mav  be  dismissed  or  re- 

etc.  manded. 

32.  When     petitioner     is     in     actual       38.  Proceedings  in  suits  removed. 

custody  of  state  court.  39.  Time  for  filing  record;   return  of 

33.  Suits    and    prosecutions    against  record,  how  enforced. 

revenue  officers,  etc. 

§  28.  Any  suit  of  a  civil  nature,  at  law  or  in  equity,  arising  under 
the  Constitution  or  laws  of  the  United  States,  or  treaties  made,  or  which 
shall  be  made,  under  their  authority,  of  which  the  district  courts  of  the 
United  States  are  given  original  jurisdiction  by  this  title,  which  may  now 
be  pending  or  which  may  hereafter  be  brought,  in  any  state  court,  may 
be  removed  hy  the  defendant  or  defendants  therein  to  the  district  court  of 
the  United  States  for  the  proper  district.  Any  other  suit  of  a  civil  nature, 
at  law  or  in  equity,  of  which  the  district  courts  of  the  United  States  are 
given  jurisdiction  by  this  title,  and  which  are  now  pending  or  which  may 
hereafter  be  brought,  in  any  state  court,  may  be  removed  into  the  district 
court  of  the  United  States  for  the  proper  district  by  the  defendant  or  de- 
fendants therein,  being  nonresidents  of  that  state.  And  when  in  any  suit 
mentioned  in  this  section  there  shall  be  a  controversy  which  is  wholly  be- 


JUDICIAL    CODE  665 

tween  citizens  of  different  states,  and  which  can  be  fully  determined  as 
between  them,  then  either  one  or  more  of  the  defendants  actually  interested 
in  such  controversy  may  remove  said  suit  into  the  district  court  of  the 
United  States  for  the  proper  district.  And  where  a  suit  is  now  pending,  or 
may  hereafter  be  brought,  in  any  state  court,  in  which  there  is  a  contro- 
versy between  a  citizen  of  the  state  in  which  the  suit  is  brought  and  a  citizen 
of  another  state,  any  defendant,  being  such  citizen  of  another  state,  may 
remove  such  suit  into  the  district  court  of  the  United  States  for  the  proper 
district,  at  any  time  before  the  trial  thereof,  when  it  shall  be  made  to 
appear  to  said  district  court  that  from  prejudice  or  local  influence  he 
will  not  be  able  to  obtain  justice  in  such  state  court,  or  in  any  other  state 
court  to  which  the  said  defendant  may,  under  the  laws  of  the  state,  have 
the  right,  on  account  of  such  prejudice  or  local  influence,  to  remove  said 
cause:  Provided,  That  if  it  further  appear  that  said  suit  can  be  fully  and 
justly  determined  as  to  the  other  defendants  in  the  state  court,  without 
being  affected  by  such  prejudice  or  local  influence,  and  that  no  party  to  the 
suit  will  be  prejudiced  by  a  separation  of  the  parties,  said  district  court 
may  direct  the  suit  to  be  remanded,  so  far  as  relates  to  such  other  de- 
fendants, to  the  state  court,  to  be  proceeded  with  therein.  At  any  time 
before  the  trial  of  any  suit  which  is  now  pending  in  any  district  court,  or 
may  hereafter  be  entered  therein,  and  which  has  been  removed  to  said  court 
from  a  state  court  on  the  affidavit  of  any  party  plaintiff  that  he  had  reason 
to  believe  and  did  believe  that,  from  prejudice  or  local  influence,  he  was 
unable  to  obtain  justice  in  said  state  court,  the  district  court  shall,  on 
application  of  the  other  party,  examine  into  the  truth  of  said  affidavit 
and  the  grounds  thereof,  and,  unless  it  shall  appear  to  the  satisfaction 
of  said  court  that  said  party  will  not  be  able  to  obtain  justice  in  said 
state  court,  it  shall  cause  the  same  to  be  remanded  thereto.  Whenever 
any  cause  shall  be  removed  from  any  state  court  into  any  district  court  of 
the  United  States,  and  the  district  court  shall  decide  that  the  cause  was 
improperly  removed,  and  order  the  same  to  be  remanded  to  the  state  court 
from  whence  it  came,  such  remand  shall  be  immediately  carried  into  execu- 
tion, and  no  appeal  or  writ  of  error  from  the  decision  of  the  district  court 
so  remanding  such  cause  shall  be  allowed:  Provided,  That  no  case  arising 
under  an  act  entitled  "An  Act  Relating  to  the  Liability  of  Common  Carriers 
by  Railroad  to  Their  Employees  in  Certain  Cases,"  approved  April  twenty- 
second,  nineteen  hundred  and  eight,  or  any  amendment  thereto,  and  brought 
in  any  state  court  of  competent  jurisdiction,  shall  be  removed  to  any  court 
of  the  United  States. 

Annotated,  our  §  221  note  c.  Referred  to  in  our  §§  261,  286,  280, 
295,  299.  351,  353,  358,  361,  363.  365,  372.  373.  378,  381,  as 
amended  Act  June  20.  1914,  ch.  48.  See  our  §  299. 

§  29.  Whenever  any  party  entitled  to  remove  any  suit  mentioned  in  the 
last  preceding  section,  except  suits  removable  on  the  grounds  of  preju- 
dice or  local  influence,  may  desire  to  remove  such  suit  from  a  state  court 
to  the  district  court  of  the  United  States,  he  may  make  and  file  a  petition, 
duly  verified,  in  such  suit  in  such  state  court  at  the  time,  or  any  time 
before  the  defendant  is  required  by  the  laws  of  the  state  or  the  rule 
of  the  state  court  in  which  such  suit  is  brought  to  answer  or  plead  to  the 


666  APPENDIX 

declaration  or  complaint  of  the  plaintiff,  for  the  removal  of  such  suit  into 
the  district  court  to  be  held  in  the  district  where  such  suit  is  pend- 
ing, and  shall  make  and  file  therewith  a  bond,  with  good  and  sufficient 
surety,  for  his  or  their  entering  in  such  district  court,  within  thirty  days 
from  the  date  of  filing  said  petition,  a  certified  copy  of  the  record  in  such 
suit,  and  for  paying  all  costs  that  may  be  awarded  by  the  said  district  court 
if  said  district  court  shall  hold  that  such  suit  was  wrongfully  or  improperly 
removed  thereto,  and  also  for  their  appearing  and  entering  special  bail 
in  such  suit  if  special  bail  was  originally  requisite  therein.  It  shall  then 
by  the  duty  of  the  state  court  to  accept  said  petition  and  bond  and  proceed 
no  further  in  such  suit.  Written  notice  of  said  petition  and  bond  for  re- 
moval shall  be  given  the  adverse  party  or  parties  prior  to  filing  the  same. 
The  said  copy  being  entered  within  said  thirty  days  as  aforesaid  in  said 
district  court  of  the  United  States,  the  parties  so  removing  the  said  cause 
shall,  within  thirty  days  thereafter,  plead,  answer,  or  demur  to  the  declara- 
tion or  complaint  in  said  cause,  and  the  cause  shall  then  proceed  in  the 
same  manner  as  if  it  had  been  originally  commenced  in  the  said  district 
court. 

Annotated,  our  §  290  note  e.    Referred  to  in  our  §§  291,  292,  293. 
294. 

§  30.  If  in  any  action  commenced  in  a  state  court  the  title  of  land 
be  concerned,  and  the  parties  are  citizens  of  the  same  state  and  the  matter 
in  dispute  exceeds  the  sum  or  value  of  three  thousand  dollars,  exclusive 
of  interest  and  costs,  the  sum  or  value  being  made  to  appear,  one  or  more 
of  the  plaintiffs  or  defendants,  before  the  trial,  may  state  to  the  court, 
and  make  affidavit  if  the  court  require  it,  that  he  or  they  claim,  and  shall 
rely  upon,  a  right  or  title  to  the  land  under  a  grant  from  a  state,  and 
produce  the  original  grant,  or  an  exemplification  of  it,  except  where  the 
loss  of  public  records  shall  put  it  out  of  his  or  their  power,  and  shall 
move  that  any  one  or  more  of  the  adverse  party  inform  the  court  whether 
he  or  they  claim  a  right  or  title  to  the  land  under  a  grant  from  some 
other  state,  the  party  or  parties  so  required  shall  give  such  information, 
or  otherwise  not  be  allowed  to  plead  such  grant  or  give  it  in  evidence 
upon  the  trial.  If  he  or  they  inform  the  court  that  he  or  they  do  claim 
under  such  grant,  any  one  or  more  of  the  party  moving  for  such  informa- 
tion may  then,  on  petition  and  bond,  as  hereinbefore  mentioned  in  this 
chapter,  remove  the  cause  for  trial  to  the  district  court  of  the  United 
States  next  to  be  holden  in  such  district;  and  any  one  of  either  party  re- 
moving the  cause  shall  not  be  allowed  to  plead  or  give  evidence  of  any 
other  title  than  that  by  him  or  them  stated  as  aforesaid  as  the  ground  of 
his  or  their  claim. 

Annotated,  our  §  262  note  a.     Referred  to  in  our  §§  300,  352. 

§  31.  When  any  civil  suit  or  criminal  prosecution  is  commenced  in 
any  state  court,  for  any  cause  whatsoever,  against  any  person  who  is  de- 
nied or  cannot  enforce  in  the  judicial  tribunals  of  the  state,  or  in  the  part 
of  the  state  where  such  suit  or  prosecution  is  pending,  any  right  secured 
to  him  by  any  law  providing  for  the  equal  civil  rights  of  citizens  of  the 
United  States,  or  of  all  persons  within  the  jurisdiction  of  the  United 
States,  or  against  any  officer,  civil  or  military,  or  other  person,  for  any 


JUDICIAL    CODE  667 

arrest  or  imprisonment  or  other  trespasses  or  wrongs  made  or  committed 
by  virtue  of  or  under  color  of  authority  derived  from  any  law  providing 
for  equal  rights  as  aforesaid,  or  for  refusing  to  do  any  act  on  the  ground 
that  it  would  be  inconsistent  with  such  law,  such  suit  or  prosecution  may, 
upon  the  petition  of  such  defendant,  filed  in  said  state  court  at  any  time 
before  the  trial  or  final  hearing  of  the  cause,  stating  the  facts  and  verified 
by  oath,  be  removed  for  trial  into  the  next  district  court  to  be  held  in  the 
district  where  it  is  pending.  Upon  the  filing  of  such  petition  all  further 
proceedings  in  the  state  courts  shall  cease,  and  shall  not  be  resumed  except 
as  hereinafter  provided.  But  all  bail  and  other  security  given  in  such 
suit  or  prosecution  shall  continue  in  like  force  and  effect  as  if  the  same 
had  proceeded  to  final  judgment  and  execution  in  the  state  court.  It 
shall  be  the  duty  of  the  clerk  of  the  state  court  to  furnish  such  defend- 
ant, petitioning  for  a  removal,  copies  of  said  process  against  him,  and  of 
all  pleadings,  depositions,  testimony,  and  other  proceedings  in  the  case. 
If  such  copies  are  filed  by  said  petitioner  in  the  district  court  on  the 
first  day  of  its  session,  the  cause  shall  proceed  therein  in  the  same  manner 
as  if  it  had  been  brought  there  by  original  process ;  and  if  the  said  clerk 
refuses  or  neglects  to  furnish  such  copies,  the  petitioner  may  thereupon 
docket  the  case  in  the  district  court,  and  the  said  court  shall  then  have 
jurisdiction  therein,  and  may,"  upon  proof  of  such  refusal  or  neglect  of  said 
clerk,  and  upon  reasonable  notice  to  the  plaintiff,  require  the  plaintiff  to  file 
a  declaration,  petition,  or  complaint  in  the  cause;  and,  in  case  of  his  de- 
fault, may  order  a  nonsuit  and  dismiss  the  case  at  the  costs  of  the  plaintiff, 
and  such  dismissal  shall  be  a  bar  to  any  further  suit  touching  the  matter 
in  controversy.  But  if,  without  such  refusal  or  neglect  of  said  clerk 
to  furnish  such  copies  and  proof  thereof,  the  petitioner  for  removal  fails 
to  file  copies  in  the  district  court,  as  herein  provided,  a  certificate,  under 
the  seal  of  the  district  court,  stating  such  failure,  shall  be  given,  and 
upon  the  production  thereof  in  said  state  court  the  cause  shall  proceed 
therein  as  if  no  petition  for  removal  had  been  filed. 

Annotated,  our  §  216  note  b.     Referred  to  in  our  §§  302,  370. 

§  32.  When  all  the  acts  necessary  for  the  removal  of  any  suit  or  prose- 
cution, as  provided  in  the  preceding  section,  have  been  performed,  and  the 
defendant  petitioning  for  such  removal  is  in  actual  custody  on  process 
issued  by  suid  state  court,  it  shall  be  the  duty  of  the  clerk  of  said  district 
court  to  issue  a  writ  of  habeas  corpus  cum  causa,  and  of  the  marshal,  by 
virtue  of  said  writ,  to  take  the  body  of  the  defendant  into  his  custody,  to 
be  dealt  with  in  said  district  court  according  to  law  and  the  orders  of  said 
court,  or,  in  vacation,  of  any  judge  thereof;  and  the  marshal  shall  file  with 
or  deliver  to  the  clerk  of  said  state  court  a  duplicate  copy  of  said  writ. 
Annotated,  our  §  303  note  r. 

§  33.  When  any  civil  suit  or  criminal  prosecution  is  commenced  in 
any  court  of  a  state  against  any  officer  appointed  under  or  acting  by  au- 
thority of  any  revenue  law  of  the  United  States  now  or  hereafter  enacted, 
or  against  any  person  acting  under  or  by  authority  of  any  such  officer 
on  account  of  any  act  done  under  color  of  his  office  or  of  any  such  law, 
or  on  account  of  any  right,  title,  or  authority  claimed  by  such  officer  or 
other  person  under  any  such  law;  or  is  commenced  against  any  person 


068  APPENDIX 

holding  property  or  estate  by  title  derived  from  any  such  officer,  and  affects 
the  validity  of  any  such  revenue  law;  or  when  any  suit  is  commenced 
against  any  person  for  on  account  of  anything  done  by  him  while  an 
officer  of  either  House  of  Congress  in  the  discharge  of  his  official  duty, 
in  executing  any  order  of  such  House,  the  said  suit  or  prosecution  may, 
at  any  time  before  the  trial  or  final  hearing  thereof,  be  removed  for  trial 
into  the  district  court  next  to  be  holden  in  the  district  where  the  same  is 
pending,  upon  the  petition  of  such  defendant  to  said  district  court,  and 
in  the  following  manner:  Said  petition  shall  set  forth  the  nature  of  the 
suit  or  prosecution  and  be  verified  by  affidavit,  and,  together  with  a  certifi- 
cate signed  by  an  attorney  or  counselor  at  law  of  some  court  of  record 
of  the  state  where  such  suit  or  prosecution  is  commenced,  or  of  the  United 
States,  stating  that,  as  counsel  for  the  petitioner,  he  has  examined  the 
proceedings  against  him  and  carefully  inquired  into  all  the  matters  set 
forth  in  the  petition,  and  that  he  believes  them  to  be  true,  shall  be  pre- 
sented to  the  said  district  court,  if  in  session,  or  if  it  be  not,  to  the  clerk 
thereof  at  his  office,  and  shall  be  filed  in  said  office.  The  cause  shall 
thereupon  be  entered  on  the  docket  of  the  district  court,  and  shall  proceed 
as  a  cause  originally  commenced  in  that  court;  but  all  bail  and  other 
security  given  upon  such  suit  or  prosecution  shall  continue  in  like  force 
and  effect  as  if  the  same  had  proceeded  to  final  judgment  and  execution  in 
the  state  court.  When  the  suit  is  commenced  in  the  state  court  by  sum- 
mons, subpoena,  petition,  or  other  process  except  capias,  the  clerk  of  the 
district  court  shall  issue  a  writ  of  certiorari  to  the  state  court,  requiring 
it  to  send  to  the  district  court  the  record  and  proceedings  in  the  cause. 
When  it  is  commenced  by  capias  or  by  any  other  similar  form  or  proceed- 
ing by  which  a  personal  arrest  is  ordered,  he  shall  issue  a  writ  of  habeas 
corpus  cum  causa,  a  duplicate  of  winch  shall  be  delivered  to  the  clerk  of 
the  state  court,  or  left  at  his  office,  by  the  marshal  of  the  district  or  his 
deputy,  or  by  some  person  duly  authorized  thereto;  and  thereupon  it  shall 
be  the  duty  of  the  state  court  to  stay  all  further  proceedings  in  the  cause, 
and  the  suit  or  prosecution,  upon  delivery  of  such  process,  or  leaving  the 
same  as  aforesaid,  shall  be  held  to  be  removed  to  the  district  court,  and 
any  further  proceedings,  trial,  or  judgment  therein  in  the  state  court  shall 
be  void.  If  the  defendant  in  the  suit  or  prosecution  be  in  actual  custody 
on  mesne  process  therein,  it  shall  be  the  duty  of  the  marshal,  by  virtue  of 
the  writ  of  habeas  corpus  cum  causa,  to  take  the  body  of  the  defendant 
into  his  custody,  to  be  dealt  with  in  the  cause  according  to  law  and  the 
order  of  the  district  court,  or,  in  vacation,  of  any  judge  thereof;  and  if, 
upon  the  removal  of  such  suit  or  prosecution,  it  is  made  to  appear  to  the 
district  court  that  no  copy  of  the  record  and  proceedings  therein  in  the 
state  court  can  be  obtained,  the  district  court  may  allow  and  require  the 
plaintiff  to  proceed  de  novo  and  to  file  a  declaration  of  his  cause  of  action, 
and  the  parties  may  thereupon  proceed  as  in  actions  originally  brought 
in  said  district  court.  On  failure  of  the  plaintiff  so  to  proceed,  judgment  of 
non  prosequitur  may  be  rendered  against  him,  with  costs  for  the  defendant. 
Annotated,  our  §  304  note  s.  Referred  to  in  our  §§  305,  306,  307. 
§  34.  Whenever  a  personal  action  has  been  or  shall  be  brought  in  any 
state  court  by  an  alien  against  any  citizen  of  a  state  who  is,  or  at  the 


JUDICIAL    CODE 

time  the  alleged  action  accrued  was,  a  civil  officer  of  the  United  States, 
being  a  nonresident  of  that  state  wherein  jurisdiction  is  obtained  by  the 
state  court,  by  personal  service  of  process,  such  action  may  be  removed 
into  the  district  court  of  the  United  States  in  and  for  the  district  in  which 
the  defendant  shall  have  been  served  with  the  process,  in  the  same  manner 
as  now  provided  for  the  removal  of  an  action  brought  in  a  state  court  by 
the  provisions  of  the  preceding  section. 

Annotated,  our  §  301  note  p.     Referred  to  in  our  §  373. 

§  35.  In  any  case  where  a  party  is  entitled  to  copies  of  the  records 
and  proceedings  in  any  suit  or  prosecution  in  a  state  court,  to  be  used  in 
any  court  of  the  United  States,  if  the  clerk  of  said  state  court,  upon  de- 
mand, and  the  payment  or  tender  of  the  legal  fees,  refuses  or  neglects  to 
deliver  to  him  certified  copies  of  such  records  and  proceedings,  the  court 
of  the  United  States  in  which  such  records  and  proceedings  are  needed 
may.  on  proof  by  affidavit  that  the  clerk  of  said  state  court  has  refused  or 
neglected  to  deliver  copies  thereof,  on  demand  as  aforesaid,  direct  such 
record  to  be  supplied  by  affidavit  or  otherwise,  as  the  circumstances  of 
the  case  may  require  and  allow;  and  thereupon  such  proceeding,  trial, 
and  judgment  may  be  had  in  the  said  court  of  the  United  States,  and  all 
such  process  awarded,  as  if  certified  copies  of  such  records  and  proceed- 
ings had  been  regularly  before  the  said  court. 
Annotated,  our  §  308  note  w. 

§  36.  When  any  suit  shall  be  removed  from  a  state  court  to  a  dis- 
trict court  of  the  United  States,  any  attachment  or  sequestration  of  the 
goods  or  estate  of  the  defendant  had  in  such  suit  in  the  state  court  shall 
hold  the  goods  or  estate  so  attached  or  sequestered  to  answer  the  final 
judgment  or  decree  in  the  same  manner  as  by  law  they  would  have  been 
held  to  answer  final  judgment  or  decree  had  it  been  rendered  by  the  court 
in  which  said  suit  was  commenced.  All  bonds,  undertakings,  or  security 
given  by  either  party  in  such  suit  prior  to  its  removal  shall  remain 
valid  and  effectual  notwithstanding  said  removal;  and  all  injunctions,  orders, 
and  other  proceedings  had  in  such  suit  prior  to  its  removal  shall  remain 
in  full  force  and  effect  until  dissolved  or  modified  by  the  court  to  which 
such  suit  shall  be  removed. 

Annotated,  our  §  311  note  z. 

§  37.  If  in  any  suit  commenced  in  a  district  court,  or  removed  from 
a  state  court  to  a  district  court  of  the  United  States,  it  shall  appear 
to  the  satisfaction  of  the  said  district  court,  at  any  time  after  such  suit 
has  been  brought  or  removed  thereto,  that  such  suit  does  not  really  and 
substantially  invoke  a  dispute  or  controversy  properly  within  the  juris- 
diction of  said  district  court,  or  that  the  parties  to  said  suit  have  been 
improperly  or  collusively  made  or  joined,  either  as  plaintiffs  or  defendants, 
for  the  purpose  of  creating  a  case  cognizable  or  removable  under  this 
chapter,  the  said  district  court  shall  proceed  no  further  therein,  but 
shall  dismiss  the  suit  or  remand  it  to  the  court  from  which  it  was  re- 
moved, as  justice  may  require,  and  shall  make  such  order  as  to  costs  aa 
shall  be  just. 

Annotated  our  §  310  note  g.     Referred  to  in  our  §  601. 

§  38.  The  district  court  of  the  United  States  shall,   in  all  suits   removed 


670  APPENDIX 

under  the  provisions  of  this  chapter,  proceed  therein  as  if  the  suit  had 
been  originally  commenced  in  said  district  court,  and  the  same  proceedings 
had  been  taken  in  such  suit  in  said  district  court  as  shall  have  been  had 
therein  in  said  state  court  prior  to  its  removal. 

Annotated,  our  §  312  note  a. 

§  39.  In  all  causes  removable  under  this  chapter,  if  the  clerk  of  the 
state  court  in  which  any  such  cause  shall  be  pending  shall  refuse  to  any  one 
or  more  of  the  parties  or  persons  applying  to  remove  the  same,  a  copy  of  the 
record  therein,  after  tender  of  legal  fees  for  such  copy,  said  clerk  so  offending 
shall,  on  conviction  thereof  in  the  district  court  of  the  United  States 
to  which  said  action  or  proceeding  was  removed,  be  fined  not  more  than  one 
thousand  dollars,  or  imprisoned  not  more  than  one  year,  or  both.  The 
district  court  to  which  any  cause  shall  be  removable  under  this  chapter 
shall  have  power  to  issue  a  writ  of  certiorari  to  said  state  court  com- 
manding such  state  court  to  make  return  of  the  record  in  any  such 
cause  removed  as  aforesaid,  or  in  which  any  one  or  more  of  the  plaintiffs 
or  defendants  have  complied  with  the  provisions  of  this  chapter  for  the 
removal  of  the  same,  and  enforce  said  writ  according  to  law.  If  it  shall 
be  impossible  for  the  parties  or  persons  removing  any  cause  under  this 
chapter,  or  complying  with  the  provisions  for  the  removal  thereof,  to 
obtain  such  copy,  for  the  reason  that  the  clerk  of  said  state  court  re- 
fuses to  furnish  a  copy,  on  payment  of  legal  fees,  or  for  any  other  reason, 
the  district  court  shall  make  an  order  requiring  the  prosecutor  in  any 
such  action  or  proceeding  to  enforce  forfeiture  or  recover  penalty,  as 
aforesaid,  to  file  a  copy  of  the  paper  or  proceeding  by  which  the  same  was 
commenced,  within  such  time  as  the  court  may  determine;  and  in  default 
thereof  the  court  shall  dismiss  the  said  action  or  proceeding;  but  if  said 
order  shall  be  complied  with,  then  said  district  court  shall  require  the 
other  party  to  plead,  and  said  action  or  proceeding  shall  proceed  to  final 
judgment.  The  said  district  court  may  make  an  order  requiring  the 
parties  thereto  to  plead  de  novo;  and  the  bond  given,  conditioned  as  afore- 
said, shall  be  discharged  so  far  as  it  requires  copy  of  the  record  to  be 
filed  as  aforesaid. 

Annotated,  our  §  309  note  z. 


JUDICIAL    CODE 


671 


CHAPTER  FOUR. 


DISTRICT   COURTS — MISCELLANEOUS   PROVISIONS. 


Sec. 

40.  Capital  cases;    where  triable. 

41.  Offenses    on   the   high    seas,    etc., 

where  triable. 

42.  Offenses    begun    in    one    district 

and  completed  in  another. 

43.  Suits    for    penalties    and    forfeit- 

ures, where  brought. 

44.  Suits   for   internal-revenue  taxes, 

where  brought. 

45.  Seizures,  where  cognizable. 

46.  Capture  of  insurrectionary  prop- 

erty, where  cognizable. 

47.  Certain  seizures  cognizable  in  any 

district  into  which  the  prop- 
erty  is  taken. 

48.  Jurisdiction  in  patent  cases: 

49.  Proceedings   to   enjoin   Comptrol- 

ler of  the  Currency. 

50.  When   a   part   of   several   defend- 

ants  cannot  be  served. 

51.  Civil  suits;  where  to  be  brought. 

52.  Suits    in   states   containing   more 

than  one  district. 

53.  Districts    containing    more    than 

one  division;  where  suit  to  be 
brought;  transfer  of  criminal 
cases. 

54.  Suits  of  a  local  nature,  where  to 

be  brought.  , 

55.  When   property    lies   in    different 

districts   in    same   state. 

56.  When    property    lies    in    different 

states  in  same  circuit;  juris- 
diction of  receiver. 


Sec. 

57.  Absent  defendants  in  suits  to  en- 

force liens,  remove  clouds  on 
titles,  etc. 

58.  Civil   causes   may   be   transferred 

to  another  division  of  district 
by  agreement. 

59.  Upon  creation  of  new  district  or 

division,  where  prosecution  to 
be  instituted  or  action  brought. 

60.  Creation     of     new     district,     or 

transfer  of  territory  not  to 
divest  lien;  how  lien  to  be  en- 
forced. 

61.  Commissioners       to       administer 

oaths  to  appraisers. 

62.  Transfer    of    records    to    district 

court  when  a  territory  be- 
comes a  state. 

63.  District  judge  shall  demand  and 

compel  delivery  of  records  of 
territorial  court. 

64.  Jurisdiction   of  district  courts  in 

cases  transferred  from  terri- 
torial courts. 

65.  Receivers  to  manage  property  ac- 

cording to  state  laws. 

66.  Suits   against  receiver. 

67.  Certain    persons    not    to    be    ap- 

pointed or  employed  as  offi- 
cers of  courts. 

68.  Certain   persons   not   to   be   mas- 

ters  or   receivers. 


§  40.  The  trial  of  offenses  punishable  with  death  shall  be  had  in  the 
county  where  the  offense  was  committed,  where  that  can  be  done  without 
great  inconvenience. 

Annotated,  our  §  174  note  n. 

§  41.  The  trial  of  all  offenses  committed  upon  the  high  seas,  or  else- 
where out  of  the  jurisdiction  of  any  particular  state  or  district,  shall 
be  in  the  district  where  the  offender  is  found,  or  into  which  he  is  first 
brought. 

Annotated,  our  §  174  note  o. 

§  42.  When  any  offense  against  the  United  States  is  begun  in  one  judicial 
district  and  completed  in  another,  it  shall  be  deemed  to  have  been  com- 
mitted in  either,  and  may  be  dealt  with,  inquired  of,  tried,  determined, 


672  APPENDIX 

and    punished    in    either    district,    in   the    same   manner   as    if    it   had   been 
actually  and  wholly  committed  therein. 
Annotated,  our  §  174  note  p. 

§  43.  All  pecuniary  penalties  and  forfeitures  may  be  sued  for  and  re- 
covered either  in  the  district  where  'they  accrue  or  in  the  district  where 
the  offender  is  found. 

Annotated,  our  §  175  note  g.     Referred  to  in  our  §  366. 

§  44.  Taxes    accruing    under    any    law    providing    internal    revenue    may 
be   sued   for   and    recovered    either    in    the    district   where    the    liability    for 
such   tax  occurs   or   in   the   district  where   the   delinquent   resides. 
Annotated,  our  §  176  note  s.     Referred  to  in  our  §  362. 

§  45.  Proceedings  on  seizures  made  on  the  high  seas,  for  forfeiture 
under  any  law  of  the  United  States,  may  be  prosecuted  in  any  district  into 
which  the  property  so  seized  is  brought  and  proceedings  instituted.  Pro- 
ceedings on  such  seizures  made  within  any  district  shall  be  prosecuted  in 
the  district  where  the  seizure  is  made,  except  in  cases  where  it  is  otherwise 
provided. 

Annotated,  our  §  175  note  r. 

§  46.  Proceedings  for  the  condemnation  of  any  property  captured,  whether 
on  the  high  seas  or  elsewhere  out  of  the  limits  of  any  judicial  district, 
or  within  any  district,  on  account  of  its  being  purchased  or  acquired, 
sold  or  given,  with  intent  to  use  or  employ  the  same,  or  to  suffer  it  to 
be  used  or  employed,  in  aiding,  abetting,  or  promoting  any  insurrection 
against  the  government  of  the  United  States,  or  knowingly  so  used  or 
employed  by  the  owner  thereof,  or  with  his  consent,  may  be  prosecuted 
in  any  district  where  the  same  may  be  seized,  or  into  which  it  may  be 
taken  and  proceedings  first  instituted. 
Annotated,  our  §  177  note  t. 

§  47.  Proceedings  on  seizures  for  forfeiture  of  any  vessel  or  cargo  enter- 
ing any  port  of  entry  which  has  been  closed  by  the  President,  in  pursuance 
of  law,  or  of  goods  and  chattels  coming  from  a  state  or  section  declared 
by  proclamation  of  the  President  to  be  in  insurrection  into  other  parts 
of  the  United  States,  or  of  any  vessel  or  vehicle  conveying  such  property, 
or  conveying  persons  to  or  from  such  state  or  section,  or  of  any  vessel 
belonging,  in  whole  or  in  part,  to  any  inhabitant  of  such  state  or  section, 
may  be  prosecuted  in  any  district  into  which  the  property  so  seized  may 
be  taken  and  proceedings  instituted;  and  the  district  court  thereof  shall 
have  as  full  jurisdiction  over  such  proceedings  as  if  the  seizure  was  made 
in  that  district. 

Annotated,  our  §  178  note  v. 

§  48.  In  suits  brought  for  the  infringement  of  letters  patent  the  dis- 
trict courts  of  the  United  States  shall  have  jurisdiction,  in  law  or  in 
equity,  in  the  district  in  which  the  defendant  is  an  inhabitant,  or  in  any 
district,  in  which  the  defendant,  whether  a  person,  partnership,  or  corpora- 
tion, shall  have  committed  acts  of  infringement  and  have  a  regular  and 
established  place  of  business.  If  such  suit  is  brought  in  a  district  of  which 
the  defendant  is  not  an  inhabitant,  but  in  which  such  defendant  has  a  regu- 
lar and  established  place  of  business,  service  of  process,  summons,  or  sub- 
poena upon  the  defendant  may  be  made  by  service  upon  the  agent  or  agents 


JUDICIAL    CODE  673 

engaged    in    conducting    such    business    in    the    district    in    which    suit    is 
brought. 

Annotated,  our  §  171  note  k.     Referred  to  in  our  §  364. 
§  49.  All    proceedings    by    any    national    banking    association    to    enjoin 
the  Comptroller  of  the  Currency,  under  the  provisions  of  any  law  relating 
lo   national   banking   associations,   shall   be   had   in   the   district   where   such 
association  is   located. 

Annotated,  our  §  172  note  1.  Referred  to  in  our  §  173  m. 
§  50.  Where  there  are  several  defendants  in  any  suit  at  law  or  in 
•equity,  and  one  or  more  of  them  are  neither  inhabitants  of  nor  found 
within  the  district  in  which  the  suit  is  brought,  and  do  not  voluntarily 
appear,  the  court  may  entertain  jurisdiction,  and  proceed  to  the  trial  and 
adjudication  of  the  suit  between  the  parties  who  are  properly  before  it; 
but  the  judgment  or  decree  rendered  therein  shall  not  conclude  or  prejudice 
other  parties  not  regularly  served  with  process  nor  voluntarily  appearing 
to  answer;  and  nonjoinder  of  parties  who  are  not  inhabitants  of  nor  found 
within  the  district,  as  aforesaid,  shall  not  constitute  matter  of  abatement 
or  objection  to  the  suit. 

Annotated,  our   §   173   note  m. 

§  51.  Except  as  provided  in  the  five  succeeding  sections,  no  person 
shall  be  arrested  in  one  district  for  trial  in  another,  in  any  civil  action 
before  a  district  court;  and,  except  as  provided  in  the  six  succeeding  sec- 
tions, no  civil  suit  shall  be  brought  in  any  district  court  against  any  per- 
son by  any  original  process  or  proceeding  in  any  other  district  than  that 
whereof  he  is  an  inhabitant;  but  where  the  jurisdiction  is  founded  only  on 
the  fact  that  the  action  is  between  citizens  of  different  states,  suit  shall 
be  brought  only  in  the  district  of  the  residence  of  either  the  plaintiff  or 
the  defendant. 

Annotated,  our  §  161  note  a.  Referred  to  in  our  §§  230,  248,  356. 
§  52.  When  a  state  contains  more  than  one  district,  every  suit  not  of 
a  local  nature,  in  the  district  court  thereof,  against  a  single  defendant, 
inhabitant  of  such  state,  must  be  brought  in  the  district  where  he  resides; 
but  if  there  are  two  or  more  defendants,  residing  in  different  -districts 
of  the  state,  it  may  be  brought  in  either  district,  and  a  duplicate  writ 
may  be  issued  against  the  defendants,  directed  to  the  marshal  of  any 
other  district  in  which  any  defendant  resides.  The  clerk  issuing  the 
duplicate  writ  shall  indorse  thereon  that  it  is  a  true  copy  of  a  writ  sued 
out  of  the  court  of  the  proper  district;  and  such  original  and  duplicate 
writs,  when  executed  and  returned  into  the  office  from  which  they  issue, 
shall  constitute  and  be  proceeded  on  as  one  suit;  and  upon  any  judgment 
or  decree  rendered  therein,  execution  may  be  issued,  directed  to  the  mar- 
shal of  any  district  in  the  same  state. 

Annotated,  our  §  162  note  b. 

§  53.  When  a  district  contains  more  than  one  division,  every  suit  not 
of  a  local  nature  against  a  single  defendant  must  be  brought  in  the  division 
where  he  resides;  but  if  there  are  two  or  more  defendants  residing  in 
different  divisions  of  the  district  it  may  be  brought  in  either  division. 
All  mesne  and  final  process  subject  to  the  provisions  of  this  section  may 
be  served  and  executed  in  any  or  all  of  the  divisions  of  the  district,  or  if 
Montg. — 13. 


G74  APPENDIX 

the  state  contains  more  than  one  district,  then  in  any  of  such  districts, 
as  provided  in  the  preceding  section.  All  prosecutions  for  crimes  or  offenses 
shall  be  had  within  the  division  of  such  districts  where  the  same  were  com- 
mitted, unless  the  court,  or  the  judge  thereof,  upon  the  application  of  the 
defendant,  shall  order  the  cause  to  be  transferred  for  prosecution  to  an- 
other division  of  the  district.  When  a  transfer  is  ordered  by  the  court  or 
judge,  all  the  papers  in  the  case,  or  certified  copies  thereof,  shall  he  trans- 
mitted by  the  clerk,  under  the  seal  of  the  court,'  to  the  division  to  which 
the  cause  is  so  ordered  transferred;  and  thereupon  the  cause  shall  be  pro- 
ceeded with  in  said  division  in  the  same  manner  as  if  the  offense  had  been 
committed  therein.  In  all  cases  of  the  removal  of  suits  from  the  courts  of 
a  state  to  the  district  court  of  the  United  States  such  removal  shall  be 
to  the  United  States  district  court  in  the  division  in  which  the  county  is 
situated  from  which  the  removal  is  made;  and  the  time  within  which  the 
removal  shall  be  perfected,  in  so  far  as  it  refers  to  or  is  regulated  by  the 
terms  of  the  United  States  courts,  shall  be  deemed  to  refer  to  the  terms 
of  the  United  States  district  court  in  such  division. 

Annotated,  our  §  163  note  c. 

§  54.  In  suits  of  a  local  nature,  where  the  defendant  resides  in  a  different 
district,  in  the  same  state,  from  that  in  which  the  suit  is  brought,  the 
plaintiff  may  have  original  and  final  process  against  him,  directed  to  the 
marshal  of  the  district  in  which  he  resides. 

Annotated,  our  §  164  note  d. 

§  55.  Any  suit  of  a  local  nature,  at  law  or  in  equity,  where  the  land 
or  other  subject-matter  of  a  fixed  character  lies  partly  in  one  district 
and  partly  in  another,  within  the  same  state,  may  be  brought  in  the 
district  court  of  either  district;  and  the  court  in  which  it  is  brought  shall 
have  jurisdiction  to  hear  and  decide  it,  and  to  cause  mesne  or  final  process 
to  be  issued  and  executed,  as  fully  as  if  the  said  subject-matter  were 
wholly  within  the  district  for  which  such  court  is  constituted. 

Annotated,  our  §  165  note  e. 

§  56.  Where  in  any  suit  in  which  a  receiver  shall  be  appointed  the  land 
or  other  property  of  a  fixed  character,  the  subject  of  the  suit,  lies  within 
different  states  in  the  same  judicial  circuit,  the  receiver  so  appointed 
shall,  upon  giving  bond  as  required  by  the  court,  immediately  be  vested 
with  full  jurisdiction  and  control  over  all  the  property,  the  subject  of 
the  suit,  lying  or  being  within  such  circuit;  subject,  however,  to  the  dis- 
approval of  such  order,  within  thirty  days  thereafter,  by  the  circuit  court 
of  appeals  for  such  circuit,  or  by  a  circuit  judge  thereof,  after  reason- 
able notice  to  adverse  parties  and  an  opportunity  to  be  heard  upon  the 
motion  for  such  disapproval:  and  subject,  also,  to  the  filing  and  entering 
in  the  district  court  for  each  district  of  the  circuit  in  which  any  portion 
of  the  property  may  lie  or  be,  within  ten  days  thereafter,  of  a  duly 
certified  copy  of  the  bill  and  of  the  order  of  appointment.  The  disap- 
proval of  such  appointment  within  such  thirty  days,  or  the  failure  to  file  such 
certified  copy  of  the  bill  and  order  of  appointment  within  ten  days,  as 
herein  required,  shall  divest,  such  receiver  of  jurisdiction  over  all  such 
property  except  that  portion  thereof  lying  or  being  within  the  state  in 
which  the  suit  is  brought.  In  any  case  coming  within  the  provisions  of 


JUDICIAL    CODE  675 

this  section,  in  which  a  receiver  shall  be  appointed,  process  may  issue 
and  be  executed  within  any  district  of  the  circuit  in  the  same  manner 
and  to  the  same  extent  as  if  the  property  were  wholly  within  the  same 
district;  but  orders  affecting  such  property  shall  be  entered  of  record  in 
each  district  in  which  the  property  affected  may  lie  or  be. 
Annotated,  our  §  167  note  g. 

§  57.  When  in  any  suit  commenced  in  any  district  court  of  the  United 
States  to  enforce  any  legal  or  equitable  lien  upon  or  claim  to,  or  to 
remove  any  incumbrance  or  lien  or  cloud  upon  .the  title  to,  real  or  personal 
property  within  the  district  where  such  suit  is  brought,  one  or  more 
of  the  defendants  therein  shall  not  be  an  inhabitant  of  or  found  within 
the  said  district,  or  shall  not  voluntarily  appear  thereto,  it  shall  be  lawful 
for  the  court  to  make  an  order  directing  such  absent  defendant  or  de- 
fendants to  appear,  plead,  answer,  or  demur  by  a  day  certain  to  be 
designated,  which  order  shall  be  served  on  such  absent  defendant  or  defend-, 
ants,  if  practicable,  wherever  found,  and  also  upon  the  person  or  persons 
in  possession  or  charge  of  said  property,  if  any  there  be;  or  where  such 
personal  service  upon  such  absent  defendant  or  defendants  is  not  prac- 
ticable, such  order  shall  be  published  in  such  manner  as  the  court  may 
direct,  not  less  than  once  a  week  for  six  consecutive  weeks.  In  case  such 
absent  defendant  shall  not  appear,  plead,  answer,  or  demur  within  the 
time  so  limited,  or  within  some  further  time,  to  be  allowed  by  the  court, 
in  its  discretion,  and  upon  proof  of  the  service  or  publication  of  said  order 
and  of  the  performance  of  the  directions  contained  in  the  same,  it  shall 
be  lawful  for  the  court  to  entertain  jurisdiction,  and  proceed  to  the  hear- 
ing and  adjudication  of  such  suit  in  the  same  manner  as  if  such  absent 
defendant  had  been  served  with  process  within  the  said  district;  but  said 
adjudication  shall,  as  regards  said  absent  defendant  or  defendants  with- 
out appearance,  affect  only  the  property  which  shall  have  been  the  sub- 
ject of  the  suit  and  under  the  jurisdiction  of  the  court  therein,  within 
such  district;  and  when  a  part  of  the  said  real  or  personal  property  against 
which  such  proceedings  shall  be  taken  shall  be  within  another  district, 
but  within  the  same  state,  such  suit  may  be  brought  in  either  district  in  said 
state:  Provided,  however,  That  any  defendant  or  defendants  not  actually 
personally  notified  as  above  provided  may,  at  any  time  within  one  year  after 
final  judgment  in  any  suit  mentioned  in  this  section,  enter  his  appearance  in 
said  suit  in  said  district  court,  and  thereupon  the  said  court  shall  make  an 
order  setting  aside  the  judgment  therein  and  permitting  said  defendant  or 
defendants  to  plead  therein  on  payment  by  him  or  them  of  such  costs  as  the 
court  shall  deem  just;  and  thereupon  said  suit  shall  be  proceeded  with  to 
final  judgment  according  to  law. 

Annotated,  our  §  166  note  f.    Referred  to  in  our  §  656. 

§  58.  Any  civil  cause,  at  law  or  in  equity,  may,  on  written  stipulation 
of  the  parties  or  of  their  attorneys  of  record  signed  and  filed  with  the 
papers  in  the  case,  in  vacation  or  in  term,  and  on  the  written  order  of 
the  judge  signed  and  filed  in  the  case  in  vacation  or  on  the  order  of  the 
court  duly  entered  of  record  in  term,  be  transferred  to  the  court  of  any 
other  division  of  the  same  district,  without  regard  to  the  residence  of  the 
defendants,  for  trial.  When  a  cause  shall  be  ordered  to  be  transferred 


676  APPENDIX 

to  a  court  in  any  other  division,  it  shall  be  the  duty  of  the  clerk  of  the 
court  from  which  the  transfer  is  made  to  carefully  transmit  to  the  clerk 
of  the  court  to  which  the  transfer  is  made  the  entire  file  of  papers  in  the 
cause  and  all  documents  and  deposits  in  his  court  pertaining  thereto, 
together  with  a  certified  transcript  of  the  records  of  all  orders,  interlocu- 
tory decrees,  or  other  entries  in  the  cause;  and  he  shall  certify,  under 
the  seal  of  the  court,  that  the  papers  sent  are  all  which  are  on  file  in 
said  court  belonging  to  the  cause;  for  the  performance  of  which  duties 
said  clerk  so  transmitting  and  certifying  shall  receive  the  same  fees  as 
are  now  allowed  by  law  for  similar  services,  to  be  taxed  in  the  bill  of 
costs,  and  regularly  collected  with  the  other  costs  in  the  cause;  and  such 
transcript,  when  so  certified  and  received,  shall  henceforth  constitute  a 
part  of  the  record  of  the  cause  in  the  court  to  which  the  transfer  shall 
be  made.  The  clerk  receiving  such  transcript  and  original  papers  shall 
file  the  same  and  the  case  shall  then  proceed  to  final  disposition  as  other 
cases  of  a  like  nature. 

Annotated,  our  §  168  note  g. 

§  59.  Whenever  any  new  district  or  division  has  been  or  shall  be  estab- 
lished, or  any  county  or  territory  has  been  or  shall  be  transferred  from 
one  district  or  division  to  another  district  or  division,  prosecutions  for 
crimes  and  offenses  committed  within  such  district,  division,  county,  or 
territory  prior  to  such  transfer,  shall  be  commenced  and  proceeded  with 
the  same  as  if  such  new  district  or  division  had  not  been  created,  or 
such  county  or  territory  had  not  been  transferred,  unless  the  court,  upon 
the  application  of  the  defendant,  shall  order  the  cause  to  be  removed  to 
the  new  district  or  division  for  trial.  Civil  actions  pending  at  the  time 
of  the  creation  of  any  such  district  or  division,  or  the  transfer  of  any 
such  county  or  territory,  and  arising  within  the  district  or  division  so 
created  or  the  county  or  territory  so  transferred,  shall  be  tried  in  the 
district  or  division  as  it  existed  at  the  time  of  the  institution  of  the 
action,  or  in  the  district  or  division  so  created,  or  to  which  the  county 
or  territory  is.  or  shall  be  so  transferred,  as  may  be  agreed  upon  by  the 
parties,  or  as  the  court  shall  direct.  The  transfer  of  such  prosecutions 
and  actions  shall  be  made  in  the  manner  provided  in  the  section  last  pre- 
ceding, 
i  Annotated,  our  §  169  note  i. 

§  60.  The  creation  of  a  new  district  or  division,  or  the  transfer  of  any 
county  or  territory  from  one  district  or  division  to  another  district  or 
division,  shall  not  affect  or  divest  any  lien  theretofore  acquired  in  the 
circuit  or  district  court  by  virtue  of  a  decree,  judgment,  execution,  at- 
tachment, seizure,  or  otherwise,  upon  property  situated  or  being  within  the 
district  or  division  so  created,  or  the  county  or  territory  so  transferred. 
To  enforce  any  such  lien,  the  clerk  of  the  court  in  which  the  same  is 
acquired,  upon  the  request  and  at  the  cost  of  the  party  desiring  the  same, 
shall  make  a  true  and  certified  copy  of  the  record  thereof,  which,  when 
so  made  and  certified,  and  filed  in  the  proper  court  of  the  district  or 
division  in  which  such  property  is  situated  or  shall  be,  after  such  tra^-fer, 
shall  constitute  the  record  of  such  lien  in  such  court,  and  shall  be  evidence 
in  all  courts  and  places  equally  with  the  original  thereof ;  and  thereafter 


JUDICIAL    CODE  677 

like  proceedings  shall  be  had  thereon,  and  with  the  same  effect,  as  though 
the  cause  or  proceeding  had  been  originally  instituted  in  such  court.  The 
provisions  of  this  section  shall  apply  not  only  in  all  cases  where  a  district 
or  division  is  created,  or  a  county  or  any  territory  is  transferred  by  this 
or  any  future  act,  but  also  in  all  cases  where  a  district  or  division  has 
been  created,  or  a  county  or  any  territory  has  been  transferred  by  any  law 
heretofore  enacted. 

Annotated,  our  §  170  note  g. 

§  61.  Any    district   judge    may    appoint    commissioners,    before    whom    ap- 
praisers  of   vessels   or   goods    and   merchandise    seized    for    breaches    of    any 
law  of  the  United  States,  may  be  sworn;    and  such   oaths,   so  taken,   shall 
be  as  effectual  as  if  taken  before  the  judge  in  open  court. 
Annotated,  our  §  42  note  pp. 

§  62.  When  any  territory  is  admitted  as  a  state,  and  a  district  court  is 
established  therein,  all  the  records  of  the  proceedings  in  the  several  cases 
pending  in  the  highest  court  of  said  territory  at  the  time  of  such  admission, 
and  all  records  of  the  proceedings  in  the  several  cases  in  which  judgments 
or  decrees  had  been  rendered  in  said  territorial  court  before  that  time,  and 
from  which  writs  of  error  could  have  been  sued  out  or  appeals  could  have 
been  taken,  or  from  which  writs  of  error  had  been  sued  out  or  appeals 
had  been  taken  and  prosecuted  to  the  Supreme  Court  or  to  the  circuit  court 
of  appeals,  shall  be  transferred  to  and  deposited  in  the  district  court  for 
the  said  state. 

Annotated,  our  §  69  note  i. 

§  63.  It  shall  be  the  duty  of  the  district  judge,  in  the  case  provided  in 
the  preceding  section,  to  demand  of  the  clerk,  or  other  person  having  pos- 
session or  custody  of  the  records  therein  mentioned,  the  delivery  there- 
of, to  be  deposited  in  said  district  court;  and  in  case  of  the  refusal  of  such 
clerk  or  person  to  comply  with  such  demand,  the  said  district  judge  shall 
compel  the  delivery  of  such  records  by  attachment  or  otherwise,  according 
to  law. 

Anotated,  our  §   69  note  j. 

§  64.  When  any  territory  is  admitted  as  a  state,  and  a  district  court 
is  established  therein,  the  said  district  court  shall  take  cognizance  of  all 
cases  which  were  pending  and  undetermined  in  the  trial  courts  of  such 
territory,  from  the  judgments  or  decrees  to  be  rendered  in  which  writs  of 
error  could  have  been  sued  out  or  appeals  taken  to  the  Supreme  Court  or 
to  the  circuit  court  of  appeals,  and  shall  proceed  to  hear  and  determine 
the  same. 

Annotated,  our  §  209  note  g. 

§  65.  Whenever  in  any  cause  pending  in  any  court  of  the  United  States 
there  shall  be  a  receiver  or  manager  in  possession  of  any  property,  such 
receiver  or  manager  shall  manage  and  operate  such  property  according  to 
the  requirements  of  the  valid  laws  of  the  state  in  which  such  property 
shall  be  situated,  in  the  same  manner  that  the  owner  or  possessor  thereof 
would  be  bound  to  do  if  in  possession  thereof.  Any  receiver  or  manager 
who  shall  wilfully  violate  any  provision  of  this  section  shall  be  fined  not 
more  than  three  thousand  dollars,  or  imprisoned  not  more  than  one  year, 
or  both. 

Annotated,  our   §  1062  note  h. 


C78  APPENDIX 

§  66.  Every  receiver  or  manager  of  any  properly  appointed  by  any 
court  of  the  United  States  may  be  sued  in  respect  of  any  act  or  transac- 
tion of  his  in  carrying  on  the  business  connected  with  such  property,  with- 
out the  previous  leave  of  the  court  in  which  such  receiver  or  manager  was 
appointed;  but  such  suit  shall  be  subject  to  the  general  equity  jurisdic- 
tion of  the  court  in  which  such  manager  or  receiver  was  appointed  so  far 
as  the  same  may  be  necessary  to  the  ends  of  justice. 

Annotated,  our  §  1053  note  c. 

§  67.  No  person  shall  be  appointed  to  or  employed  in  any  office  or  duty 
in  any  court  who  is  related  by  affinity  or  consanguinity  within  the  degree 
of  first  cousin  to  the  judge  of  such  court. 

As  amended,  Act  Dec.  21,  1911,  ch.  4,  37  Stat.  at  L.  46.     See  our 

§   32. 

Annotated,  our  §  32  note  1. 

§  68.  No  clerk  of  a  district  court  of  the  United  States  or  his  deputy 
shall  be  appointed  a  receiver  or  master  in  any  case,  except  where  the  judge 
of  said  court  shall  determine  that  special  reasons  exist  therefor,  to  be 
assigned  in  the  order  of  appointment. 

Annotated,  our  §  41,  note  p. 


CHAPTER  FIVE. 

DISTRICT  COURTS DISTRICTS,  AND  PROVISIONS  APPLICABLE  TO  PARTICULAR  STATES. 

Sec.  Sec. 

69.  Judicial  districts.  93.  Nebraska. 

70.  Alabama.  94.  Nevada. 

71.  Arkansas.  95.  New  Hampshire. 

72.  California.  96.  New  Jersey. 

73.  Colorado.  97.  New    York. 

74.  Connecticut.  98.  North    Carolina. 

75.  Delaware.  99.  North  Dakota. 

76.  Florida.  100.  Ohio. 

77.  Georgia.  101.  Oklahoma. 

78.  Idaho.  102.  Oregon. 

79.  Illinois.  103.  Pennsylvania. 

80.  Indiana.  104.  Rhode    Island. 

81.  Iowa.  105.  South  Carolina. 

82.  Kansas.  106.  South  Dakota. 

83.  Kentucky.  107.  Tennessee. 

84.  Louisiana.  108.  Texas. 

85.  Maine.  109.  Utah. 

86.  Maryland.  110.  Vermont. 

87.  Massachusetts.  111.  Virginia. 

88.  Michigan.  112.  Washington. 

89.  Minnesota.  113.  West  Virginia. 

90.  Mississippi.  114.  Wisconsin. 

91.  Missouri.  115.  Wyoming. 

92.  Montana. 

§  69.  The  United  States  are  divided  into  judicial  districts  as  follows: 
36  Stat.  at  L.  1105,  Comp.  St.  1911,  p.  156,  1912  Supp.  F.  S.  A.  v.  1,  p. 
160.     Re-enacting  §  297,  R.  S.  U.  S.,  Comp.  St.  1901,  p.  316,  4  F.  S.  A.  16, 


JUDICIAL    CODE  679 

which   section   is   repealed   by   §   297,   Judicial   Code.     In  general,  Barrett   v. 
United  States,  169  U.  S.  218,  42  L.  ed.  723,  18  Sup.  Ct.  Rep.  327. 

§  70.  The  state  of  Alabama  is  divided  into  three  judicial  districts,  to 
be  known  as  the  northern,  middle,  and  southern  districts  of  Alabama.  The 
northern  district  shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Cullman,  Jackson,  Law- 
rence, Limestone,  Madison,  and  Morgan,  which  shall  constitute  the  north- 
eastern division  of  said  district;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Colbert,  Franklin,  and  Lauderdale,  which 
shall  constitute  the  northwestern  division  of  said  district;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Cherokee,  De  Kalb, 
Etowah,  Marshall,  and  Saint  Clair,  which  shall  constitute  the  middle  division 
of  said  district;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Blount,  Jefferson,  and  Shelby,  which  shall  constitute 
the  southern  division  of  said  district;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Walker,  Winston,  Marion,  Fayette,  and 
Lamar,  which  shall  constitute  the  Jasper  division  of  said  district;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Calhoun, 
Clay,  Cleburne,  and  Talladega,  which  shall  constitute  the  eastern  division 
of  said  district;  also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Bibb,  Greene,  Pickens,  Sumter,  and  Tuscdloosa,  which  shall  con- 
stitute the  western  division  of  said  district.  Terms  of  the  district  court  for 
the  northeastern  division  shall  be  held  at  Huntsville  on  the  first  Tuesday  in 
April  and  the  second  Tuesday  in  October;  for  the  northwestern  division,  at 
Florence  on  the  second  Tuesday  in  February  and  the  third  Tuesday  in 
October:  Provided,  That  suitable  rooms  and  accommodations  for  holding 
court  at  Florence  shall  be  furnished  free  of  expense  to  the  government : 
for  the  middle  division,  at  Gadsden  on  the  first  Tuesdays  in  February  and 
August:  Provided,  That  suitable  rooms  and  accommodations  for  the  hold- 
ing court  at  Gadsden  shall  be  furnished  free  of  expense  to  the  govern- 
ment; for  the  southern  division,  at  Birmingham  on  the  first  Mondays  in 
March  and  September,  which  courts  shall  remain  in  session  for  the  transac- 
tion of  business  at  least  six  months  in  each  calendar  year;  for  the  Jasper 
division,  at  Jasper  on  the  second  Tuesdays  in  January  and  June:  Pro- 
vided, That  suitable  rooms  and  accommodations  for  holding  court  at  Jasper 
shall  be  furnished  free  of  expense  to  the  government;  for  the  eastern 
division,  at  Anniston  on  the  first  Mondays  in  May  and  November;  and 
for  the  western  division,  at  Tuscaloosa  on  the  first  Tuesdays  in  January 
and  June.  The  clerk  of  the  court  for  the  northern  district  shall  main- 
tain an  office  in  charge  of  himself  or  a  deputy  at  Anniston,  at  Florence, 
at  Jasper,  and  at  Gadsden,  which  shall  be  kept  open  at  all  times  for 
the  transaction  of  the  business  of  said  court.  The  district  judge  for  the 
northern  district  shall  reside  at  Birmingham.  The  middle  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Autauga,  Barbour,  Bullock,  Butler,  Chilton, 
Chambers,  Coosa,  Covington,  Crensha.v,  Elmorc,  Lee,  Lowndes,  Macon,  Mont- 
gomery, Pike,  Randolph,  Russell,  and  Tallapoosa,  which  shall  constitute  the 
northern  division  of  said  district;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Coffee,  Dale.  Geneva,  Henry,  and  Houston, 


080  APPENDIX 

which  shall  constitute  the  southern  division  of  said  district.  Terms  of  the 
district  court  for  the  northern  division  shall  be  held  at  Montgomery  on 
the  first  Tuesdays  in  May  and  December;  and  for  the  southern  division, 
at  Dothan  on  the  first  Mondays  in  June  and  December.  The  clerk  for 
the  middle  district  shall  maintain  an  office,  in  charge  of  himself  or  a  deputy, 
at  Dothan,  which  shall  be  open  at  all  times  for  the  transaction  of  the 
business  of  said  division.  The  southern  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Baldwin,  Choctaw,  Clarke,  Conecuh,  Escambia,  Mobile,  Monroe,  and 
Washington,  which  shall  constitute  the  southern  division  of  said  district; 
also  the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Dallas,  Hale,  Marengo,  Perry,  and  Wilcox,  which  shall  constitute  the  north- 
ern division  of  said  district.  Terms  of  the  district  court  for  the  southern 
division  shall  be  held  at  Mobile  on  the  fourth  Mondays  in  May  and  No- 
vember;  and  for  the  northern  division,  at  Selma  on  the  first  Mondays  in 
May  and  November. 

Annotated,  our  §   101  note  a.     As  amended,  Act  Feb.   28.   1913, 

ch.  89.     See  our  §  101. 

§  71.  The  state  of  Arkansas  is  divided  into  two  districts,  to  be  known 
as  the  eastern  and  western  districts  of  Arkansas.  The  western  district 
shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hun- 
dred and  ten,  in  the  counties  of  Sevier,  Howard,  Little  River,  Pike,  Hempsteadr 
Miller,  Lafayette,  Columbia,  Nevada,  Ouachita,  Union,  and  Calhoun,  which 
shall  constitute  the  Texarkana  division  of  said  district;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Polk,  Scott,  Yell, 
Logan,  Sebastian,  Franklin,  Crawford,  Washington,  Benton,  and  Johnson, 
which  shall  constitute  the  Fort  Smith  division  of  said  district;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Baxter, 
Boone,  Carroll,  Madison,  Marion,  Newton  and  Searcy,  which  shall  constitute 
the  Harrison  division  of  said  district.  Terms  of  the  district  court  for  the 
Texarkana  division  shall  be  held  at  Texarkana  on  the  second  Mondays  in 
May  and  November;  for  the  Fort  Smith  division,  at  Fort  Smith  on  the 
second  Mondays  in  January  and  June;  and  for  the  Harrison  division,  at 
Harrison  on  the  second  Mondays  in  April  and  October.  The  eastern  district 
shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hun- 
dred and  ten,  in  the  counties  of  Lee,  Phillips,  Saint  Francis,  Cross,  Monroe, 
and  Woodruff,  which  shall  constitute  the  eastern  division  of  said  district; 
also  the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Independence.  Cleburne,  Stone,  Izard,  Sharp,  and  Jackson,  which  shall 
constitute  the  northern  division  of  said  district;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Crittenden,  Clay,  Craighead, 
Greene,  Mississippi,  Poinsett,  Fulton,  Randolph,  and  Lawrence,  which  shall 
constitute  the  Jonesboro  division  of  said  district;  and  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Arkansas,  Ashley, 
Bradley,  Chicot,  Clark,  Cleveland,  Conway,  Dallas,  Desha,  Drew,  Faulk- 
ner, Garland,  Grant,  Hot  Spring,  Jefferson,  Lincoln,  Lonoke,  Montgomery, 
Perry,  Pope,  Prairie,  Pulaski,  Saline,  Van  Buren,  and  White,  which  shall 
constitute  the  western  division  of  said  district.  Terms  of  the  district  court 
for  the  eastern  division  shall  be  held  at  Helena  on  the  second  Mondav  in 


JUDICIAL    CODE  681 

March  and  the  first  Monday  in  October;  for  the  northern  division,  at  Bates- 
ville  on  the  fourth  Monday  in  May  and  the  second  Monday  in  December: 
for  the  Jonesboro  division,  at  Jonesboro  on  the  second  Mondays  in  May 
and  November;  and  for  the  western  division  at  Little  Rock  on  rthe  first 
Monday  in  April  and  the  third  Mondays  in  October.  The  clerk  of  the 
\;ourt  for  the  eastern  district  shall  maintain  an  office  in  charge  of  himself 
or  a  deputy  at  Little  Rock,  at  Helena,  at  Jonesboro,  and  at  Batesville, 
which  shall  be  kept  open  at  all  times  for  the  transaction  of  the  business 
of  the  court.  And  the  clerk  of  the  court  for  the  western  district  shall 
maintain  an  office  in  charge  of  himself  or  a  deputy  at  Fort  Smith,  at  Har- 
rison, and  at  Texarkana,  which  shall  be  kept  open  at  all  times  for  tin- 
transaction  of  the  business  of  the  court. 

Annotated,  our  §  102  note  b. 

§  72.  The  state  of  California  is  divided  into  two  districts,  to  be  known 
as  the  northern  and  southern  districts  of  California.  The  southern  district 
shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Fresno,  Inyo,  Kern,  Kings,  Madera, 
Mariposa,  Merced,  and  Tulare,  which  shall  constitute  the  northern  division 
of  said  district;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Imperial,  Los  Angeles,  Orange,  Riverside,  San  Bernardino, 
San  Diego,  San  Luis  Obispo,  Santa  Barbara,  and  Ventura,  which  shall  con- 
stitute the  southern  division  of  said  district.  Terms  of  the  district  court 
for  the  northern  division  shall  be  held  at  Fresno  on  the  first  Monday  in 
May  and  the  second  Monday  in  November;  and  for  the  southern  division,  at 
Los  Angeles,  on  the  second  Monday  in  January  and  the  second  Monday 
in  July,  and  at  San  Diego  on  the  second  Mondays  in  March  and  September. 
The  northern  district  shall  include  the  territory  embraced  on  the  first  day 
of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Alameda,  Alpine,  Ama- 
dor,  Butte,  Calaveras,  Colusa.  Contra  Costa,  Del  Norte,  El  Dorado,  Glenn, 
Humboldt.  Lake,  Lassen,  Marin,  Mendocino,  Modoc,  Mono,  Monterey,  Napa, 
Nevada,  Placer,  Plumas,  Sacramento,  San  Benito,  San  Francisco,  San  Jo- 
aquin,  San  Mateo,  Santa  Clara,  Santa  Cruz,  Shasta,  Sierra,  Siskiyou,  Solano, 
Sonoma,  Stanislaus,  Sutter,  Tehama,  Trinity,  Tuolumne,  Yolo,  and  Yuba. 
Terms  of  the  district  court  for  the  northern  district  shall  be  held  at  San 
Francisco  on  the  first  Monday  in  March,  the  second  Monday  in  July,  and 
the  first  Monday  in  November;  at  Sacramento  on  the  second  Monday  in 
April;  and  at  Eureka  on  the  third  Monday  in  July. 

Annotated,  our   §   104  note  c. 

§  73.  The  state  of  Colorado  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Colorado.  Terms  of  the  district  court  shall  be 
held  at  Denver  on  the  first  Tuesdays  in  May  and  November;  at  Pueblo  on 
the  first  Tuesday  in  April;  and  at  Montrose  on  the  second  Tuesday  in  Sep- 
tember. 

Annotated,  our  §  105  note  d. 

§  74.  The  state  of  Connecticut  shall  constitute  one  judicial  district,  to 
be  known  as  the  district  of  Connecticut.  Terms  of  the  district  court  shall 
be  held  at  New  Haven  on  the  fourth  Tuesdays  in  February  an.d  September, 
and  at  Hartford  on  the  fourth  Tuesday  in  May  and  the  first  Tuesday  in 
December, 

Annotated,  our  §  106  note  e. 


682  APPENDIX 

§  75.  The  state  of  Delaware  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Delaware.  Terms  of  the  district  court  shall  be 
held  at  Wilmington  on  the  second  Tuesdays  in  March,  June,  September,  and 
December. 

Annotated,  our  §  107  note  f. 

§  76.  The  state  of  Florida  is  divided  into  two  districts,  to  be  known 
as  the  northern  and  southern  districts  of  Florida.  The  southern  district 
shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Baker,  Bradford,  Brevard,  Citrus,  Clay, 
Columbia,  Dade,  De  Soto,  Duval,  Hamilton,  'Hernando,  Hillsboro,  Lake,  Lee, 
Madison,  Manatee,'  Marion,  Monroe,  Nassau,  Orange,  Osceola,  Palm  Beach, 
Pasco,  Polk,  Putnam,  Saint  John,  Sumter,  Suwanee,  Saint  Lucie,  and  Volusia. 
Terms  of  the  district  court  for  the  southern  district  shall  be  held  at  Ocala 
on  the  third  Monday  in  January;  at  Tampa  on  the  second  Monday  in  Feb- 
ruary; at  Key  West  on  the  first  Mondays  in  May  and  November;  at  Jackson- 
ville on  the  first  Monday  in  December;  at  Fernandina  on  the  first  Monday  in 
April;  and  at  Miami  on  the  fourth  Monday  in  April.  The  district  court 
for  the  southern  district  shall  be  open  at  all  times  for  the  purpose  of  hear- 
ing and  deciding  causes  of  admiralty  and  maritime  jurisdiction.  The  north- 
ern district  shall  include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten,  in  the  counties  of  Alachua,  Calhoun,  Escambia, 
Franklin,  Gadsden,  Holmes,  Jackson,  Jefferson,  Lafayette,  Leon,  Levy,  Liberty, 
Santa  Rosa,  Taylor,  Wakulla,  Walton,  and  Washington.  Terms  of  the 
district  court  for  the  northern  district  shall  be  held  at  Tallahassee  on 
the  second  Monday  in  January;  at  Pensacola  on  the  first  Mondays  in  May 
and  November;  at  Marianna  on  the  first  Monday  in  April;  and  at  Gaines- 
ville on  the  second  Mondays  in  June  and  December. 
Annotated,  our  §  108  note  f. 

§  77.  The  state  of  Georgia  is  divided  into  two  districts,  to  be  known  as 
the  northern  and  southern  districts  of  Georgia.  The  northern  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Campbell,  Carroll,  Clayton,  Cobb,  Coweta,  Chero- 
kee, Dekalb,  Douglas,  Dawson,  Fannin,  Fayette,  Fulton,  Forsyth,  Gilmer, 
Gwinnett,  Hall,  Henry,  Lumpkin,  Milton,  Newton,  Pickens,  Rockdale,  Spald- 
ing,  Towns,  and  Union,  which  shall  constitute  the  northern  division  of  said 
district;  also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Banks,  Clarke,  Elbert,  Franklin,  Greene,  Habersham,  Hart,  Jack- 
son, Morgan,  Madison,  Oglethorpe,  Oconee,  Rabun,  Stephens,  Walton,  and 
W7hite,  which  shall  constitute  the  eastern  division  of  said  district;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Chatta- 
hoochee,  Clay,  Early,  Harris,  Heard,  Meriwether,  Marion,  Muscogee,  Quit- 
man,  Randolph,  Schley,  Stewart,  Talbot,  Taylor,  Terrell,  Troup,  and  Webster, 
which  shall  constitute  the  western  division  of  said  district;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Bartow,  Chattooga, 
Catoosa,  Dade,  Floyd,  Gordon,  Haralson,  Murray,  Paulding,  Polk,  Walker, 
and  Whitfield,  which  shall  constitute  the  northwestern  division  of  said  dis- 
trict. Terms,  of  the  district  court  for  northern  division  of  said  district  shall 
be  held  at  Atlanta  on  the  second  Monday  in  March  and  the  first  Monday 
in  October;  for  the  eastern  division,  at  Athens  on  the  second  Monday  in 


JUDICIAL    CODE  683 

April  and  the  first  Monday  in  November;  for  the  western  division,  at  Co- 
lumbus on  the  first  Mondays  in  May  and  December;  and  for  the  northwestern 
division,  at  Rome  on  the  third  Mondays  in  May  and  November.  The  clerk 
of  the  court  for  the  northern  district  shall  maintain  an  office  in  charge  of 
himself  or  a  deputy  at  Athens,  at  Columbus,  and  at  Rome,  which  shall  be 
kept  open  at  all  times  for  the  transaction  of  the  business  of  the  court. 
The  southern  district  shall  include  the  territory  embraced  on  the  said  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Appling,  Bulloch, 
Bryan,  Camden,  Chatham,  Emanuel,  Effingham,  Glynn,  Jeff  Davis,  Liberty, 
Montgomery,  Mclntosh,  Screven,  Tatnall,  Toombs,  and  Wayne,  which  shall 
constitute  the  eastern  division  of  said  district;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Baldwin,  Bibb,  Butts,  Crawford, 
Dodge,  Dooly,  Hancock,  Houston,  Jasper,  Jones,  Laurens,  Macon,  Monroe, 
Pike,  Pulaski,  Putnam,  Sumter,  Telfair,  Twiggs,  Upson,  Wilcox,  and  Wilkin- 
son, which  shall  constitute  the  western  division;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Burke,  Columbia,  Glascock, 
Jefferson,  Jenkins,  Johnson,  Lincoln,  McDuffie,  Richmond,  Taliaferro,  Wash- 
ington, Wilkes,  and  Warren,  which  shall  constitute  the  northeastern  division; 
also  the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Ber- 
rien,  Brooks,  Charlton,  Clinch,  Coffee,  Decatur,  Echols,  Grady,  Irwin, 
Lowndes,  Pierce,  and  Ware,  which  shall  constitute  the  southwestern  divi- 
sion; and  also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Baker,  Benn  Hill,  Calhoun,  Crisp,  Colquitt,  Dougherty,  Lee, 
Miller,  Mitchell,  Thomas,  Tift,  Turner,  and  Worth,  which  shall  constitute 
the  Albany  division.  Terms  of  the  district  court  for  the  western  division 
shall  be  held  at  Macon  on  the  first  Mondays  in  May  and  October;  for  the 
eastern  division,  at  Savannah  on  the  second  Tuesdays  in  February,  May, 
August,  and  November;  for  the  northeastern  division,  at  Augusta  on  the 
first  Monday  in  April  and  the  third  Monday  in  November;  for  the  south- 
western division,  at  Valdosta  on  the  second  Mondays  in  June  and  December; 
and  for  the  Albany  division,  at  Albany  on  the  third  Mondays  in  June  and 
December. 

Annotated,  our  §  109  note  h.     As  amended  March  4,  1913,  ch.  167. 

See  our  §  109. 

§  78.  The  state  of  Idaho  shall  constitute  one  judicial  district,  to  be  known 
as  the  district  of  Idaho.  It  is  divided  into  four  divisions,  to  be  known 
as  the  northern,  central,  southern,  and  eastern  divisions.  The  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Bonner,  Kootenai,  and  Shoshone,  shall  constitute  the  northern  division 
of  said  district;  and  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Idaho,  Latah,  and  Nez  Perce,  shall  constitute  the  central 
division  of  said  district;  and  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Ada,  Boise,  Blaine,  Cassia,  Twin  Falls,  Canyon,  El- 
more,  Lincoln,  Owyhee,  and  Washington,  shall  constitute  the  southern  divi- 
sion of  said  district;  and  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Bannock,  Bear  Lake,  Bingham,  Custer,  Fremont,  Lemhi, 
and  Oneida,  shall  constitute  the  eastern  division  of  said  district.  Terms  of 
the  district  court  for  the  northern  division  of  said  district  shall  be  held  at 
Coeur  d'Alene  city  on  the  fourth  Monday  in  May  and  the  third  Monday  in 


684  APPENDIX 

November;  for  the  central  division,  at  Moscow  on  the  second  Monday  in 
May  and  the  first  Monday  in  November;  for  the  southern  division,  at  Boise 
city  on  the  second  Mondays  in  February  and  September;  and  for  the  eastern 
division,  at  Pocatello  on  the  second  Mondays  in  March  and  October.  The 
clerk  of  the  court  shall  maintain  an  office  in  charge  of  himself  or  a  dep- 
uty at  Coeur  d'Alene  city,  at  Moscow,  at  Boise  city,  and  at  Pocatello, 
which  shall  be  open  at  all  times  for  the  transaction  of  the  business  of  the 
court. 

Annotated,  our  §  110  note  i. 

§  79.  The  state  of  Illinois  is  divided  into  three  districts,  to  be  known 
as  the  northern,  southern,  and  eastern  districts  of  Illinois.  The  north- 
ern district  shall  include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten,  in  the  counties  of  Cook,  Dekalb,  Dupage,  Grun- 
dy,  Kane,  Kendall,  Lake,  Lasalle,  McHenry,  and  Will,  which  shall  con- 
stitute the  eastern  division;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Boone,  Carroll,  Jo  Daviess,  Lee,  Ogle,  Stephen- 
son,  Whiteside,  and  Winnebago,  which  shall  constitute  the  western  division. 
Terms  of  the  district  court  for  the  eastern  division  shall  be  held  at  Chicago 
on  the  first  Mondays  in  February,  March,  April,  May,  June,  July,  September, 
October,  and  November,  and  the  third  Monday  in  December;  and  for  the 
western  division,  at  Freeport  on  the  third  Mondays  in  April  and  October. 
The  clerk  of  the  court  for  the  northern  district  shall  maintain  an  office 
in  charge  of  himself  or  a  deputy  at  Chicago  and  at  Freeport,  which  shall 
be  kept  open  at  all  times  for  the  transaction  of  the  business  of  the  court. 
The  marshal  for  the  northern  district  shall  maintain  an  office  in  the  division 
in  which  he  himself  does  not  reside  and  shall  appoint  at  least  one  deputy 
who  shall  reside  therein.  The  southern  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Bureau,  Fulton,  Henderson,  Henry,  Knox,  Livingston,  McDonough,  Mar- 
si)  all,  Mercer,  Putnam,  Peoria,  Rock  Island,  Stark,  Tazewell,  Warren,  and 
VVoodford,  which  shall  constitute  the  northern  division;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Adams.  Bond,  Brown, 
Calhoun,  Cass,  Christian,  Dewitt,  Greene,  Hancock,  Jersey,  Logan,  McLean, 
Macon,  Macoupin,  Madison,  Mason,  Menard,  Montgomery,  Morgan,  Pike, 
Sangamon,  Schuyler,  and  Scott,  which  shall  constitute  the  southern  division. 
Terms  of  the  district  court  for  the  northern  division  shall  be  held  at  Peoria 
on  the  third  Mondays  in  April  and  October;  for  the  southern  division,  at 
Springfield  on  the  first  Mondays  in  January  and  June,  and  at  Quincy  on  the 
first  Mondays  in  March  and  September.  The  clerk  of  the  court  for  the  south- 
ern district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at 
Peoria,  at  Springfield,  and  at  Quincy,  which  shall  be  kept  open  at  all  times 
for  the  transaction  of  the  business  of  the  court.  The  marshal  for  said 
southern  district  shall  appoint  at  least  one  deputy  residing  in  the  said 
northern  division,  who  shall  maintain  an  office  at  Peoria.  The  eastern  dis- 
trict shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,* in  the  counties  of  Alexander,  Champaign,  Clark,  Clay, 
Clinton,  Coles,  Crawford,  Cumberland,  Douglas,  Edgar,  Edwards,  Effingham, 
Fayette,  Ford,  Franklin,  Gallatin,  Hamilton,  Hardin,  Iroquois,  Jackson,  Jas- 
per, Jefferson,  Johnson,  Kankakee,  Lawrence,  Marion,  Massac.  Monroe,  Moul- 


JUDICIAL    CODE  685 

• 

trie,  Perry,  Piatt,  Pope,  Pulaski,  Randolph,  Richland,  Saint  Clair,  Saline, 
Shelby,  Union,  Vermilion,  Wabash,  Washington,  Wayne,  White,  and  William- 
son. Terms  of  the  district  court  for  the  eastern  district  shall  be  held  at 
Danville  on  the  first  Mondays  in  March  and  September;  at  Cairo  on  the  first 
Mondays  in  April  and  October;  and  at  East  Saint  Louis  on  the  first  Mon- 
days in  May  and  November.  The  clerk  of  the  court  for  the  eastern  district 
shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at  Danville,  at 
Cairo,  and  at  East  Saint  Louis,  which  shall  be  kept  open  at  all  times  for 
the  transaction  of  the  business  of  the  court,  and  shall  there  keep  the  records, 
files,  and  documents  pertaining  to  the  court  at  that  place. 

§  80.  The  state  of  Indiana  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Indiana.  Terms  of  the  district  court  shall  be  held 
at  Indianapolis  on  the  first  Tuesdays  in  May  and  November;  at  New  Al- 
bany on  the  first  Mondays  in  January  and  July;  at  Evansville  on  the  first 
Mondays  in  April  and  October;  at  Fort  Wayne  on  the  second  Tuesdays  in 
June  and  December;  and  at  Hammond  on  the  third  Tuesdays  in  April  and 
October.  The  clerk  of  the  court  shall  appoint  four  deputy  clerks,  one  of  whom 
shall  reside  and  keep  his  office  at  New  Albany,  one  at  Evansville,  one  at 
Fort  Wayne,  and  one  at  Hammond.  Each  deputy  shall  keep  in  his  office 
full  records  of  all  actions  and  proceedings  of  the  district  court  held  at  that 
place. 

Annotated,  our  §  112  note  k. 

§  81.  The  state  of  Iowa  is  divided  into  two  judicial  districts,  to  be  known 
as  the  northern  and  southern  districts  of  Iowa.  The  northern  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Allamakee,  Dubuque,  Buchanan,  Clayton,  Dela- 
ware, Fayette,  Winneshiek,  Howard,  Chickasaw,  Bremer,  Blackhawk,  Floyd, 
Mitchell,  and  Jackson,  which  shall  constitute  the  eastern  division  of  said 
district;  also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  on  Jones,  Cedar,  Linn,  Johnson,  Iowa,  Benton,  Tama,  Grundy,  and 
Hardin,  which  shall  constitute  the  Cedar  Rapid  division;  also  the  territory 
embraced  -on  the  date  last  mentioned  in  the  counties  of  Emmit,  Palo  Alto, 
Pocahontas,  Calhoun,  Kossuth,  Humboldt,  Webster,  Winnebago,  Hancock, 
Wright,  Hamilton,  Worth,  Cerro  Gordo,  Franklin,  and  Butler,  which  shall 
constitute  the  central  division ;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Dickinson,  Clay,  Buena  Vista,  Sac,  Osceola, 
O'Brien,  Cherokee,  Ida,  Lyon,  Sioux,  Plymouth,  Woodbury,  and  Monona,  which 
shall  constitute  the  western  division.  Terms  of  the  district  court  for  the 
eastern  division  shall  be  held  at  Dubuque  on  the  fourth  Tuesday  in  April 
and  the  first  Tuesday  in  December,  and  at  Waterloo  on  the  second  Tuesdays 
in  May  and  September;  for  the  Cedar  Rapids  division,  at  Cedar  Rapids  on 
the  first  Tuesday  in  April  and  the  fourth  Tuesday  in  September;  for  the 
central  division,  at  Fort  Dodge  on  the  second  Tuesdays  in  June  and  No- 
vember; and  for  the  western  division,  at  Sioux  City  on  the  fourth  Tuesday 
in  May  and  the  third  Tuesday  in  October.  The  southern  district  shall  in- 
clude the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Louisa,  Henry.  Des  Moines,  Lee,  and  Van  Buren, 
which  shall  constitute  the  eastern  division  of  said  district;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  counties  of  Marshall,  Story, 


686  APPENDIX 

Boone,  Greene,  Guthrie,  Dallas,  Polk,  Jasper,  Poweshiek,  Marion,  Warren, 
and  Madison,  which  shall  constitute  the  central  division  of  said  district; 
also  the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Carroll,  Crawford,  Harrison,  Shelby,  Audubon,  Cass,  Pottawattamie,  Mills, 
and  Montgomery,  which  shall  constitute  the  western  division  of  said  district; 
also  the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Adair,  Adams,  Clarke,  Decatur,  Fremont,  Lucas,  Page,  Ringgold,  Taylor, 
Union,  and  Wayne,  which  shall  constitute  the  southern  division  of  said  dis 
trict;  also  the  territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Scott,  Muscatin,  Washington,  and  Clinton,  which  shall  constitute  the 
Davenport  division  of  said  district;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Davis,  Appanoose,  Mahaska,  Keokuk,  Jeffer- 
son, Monroe,  and  Wapello,  which  shall  constitute  the  Ottumwa  division  of 
said  district.  Terms  of  the  district  court  for  the  eastern  division  shall  be 
held  at  Keokuk  on  the  second  Tuesday  in  April  and  the  third  Tuesday  in 
October;  for  the  central  division,  at  Des  Moines  on  the  second  Tuesday  in 
May  and  the  third  Tuesday  in  November;  for  the  western  division,  at  Council 
Bluffs  on  the  second  Tuesday  in  March  and  the  third  Tuesday  in  September; 
for  the  southern  division,  at  Creston  on  the  fourth  Tuesday  in  March  and 
the  first  Tuesday  in  November;  for  the  Davenport  division,  at  Davenport 
on  the  fourth  Tuesday  in  April  and  the  first  Tuesday  in  October;  and  for 
the  Ottumwa  division,  at  Ottumwa  on  the  first  Monday  after  the  fourtli 
Tuesday  in  March,  and  the  first  Monday  after  the  third  Tuesday  in  October. 
The  clerk  of  the  court  for  said  district  shall  maintain  an  office  in  charge  of 
himself  or  a  deputy  at  Davenport  and  at  Ottumwa.  for  the  transaction  of 
the  business  of  said  divisions. 

Annotated,  our  §  113  note  1,  as  amended  Mch.  3,  1913.     See  our 

§   113. 

§  82.  The  state  of  Kansas  shall  constitute  one  judicial  district,  to  be  known 
as  the  district  of  Kansas.  It  is  divided  into  three  divisions,  to  be  known  as 
the  first,  second,  and  third  divisions  of  the  district  of  Kansas.  The  first 
division  shall  include  the  territory  embraced  on  the  first  day  of  July,  nine- 
teen hundred  and  ten,  in  the  counties  of  Atchison,  Brown,  Chase,  Cheyenne, 
Clay,  Cloud,  Decatur,  Dickinson,  Doniphan,  Douglas,  Ellis,  Franklin,  Geary, 
Gove,  Graham,  Jackson,  Jefferson,  Jewell,  Johnson,  Leavenworth,  Lincoln, 
Logan,  Lyon,  Marion,  Marshall,  Mitchell,  Morris,  Nemaha,  Norton,  Osage, 
Osborne,  Ottawa,  Phillips,  Pottawatomie,  Rawlins,  Republic.  Riley,  Rooks, 
Russell,  Saline,  Shawnee,  Sheridan.  Sherman,  Smith,  Thomas,  Trego,  Wabaun- 
see,  Wallace,  Washington,  and  Wyandotte.  The  second  division  shall  include 
the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Barber, 
Barton,  Butler,  Clark,  Comanche,  Cowley,  Edwards,  Ellsworth,  Finney,  Ford, 
Grant,  Gray,  Greeley,  Hamilton,  Harper,  Harvey,  Hodgeman,  Haskell,  King- 
man,  Kiowa,  Kearny,  Lane,  McPherson,  Morton,  Meade,  Ness,  Pratt,  Pawnee, 
Reno,  Rice,  Rush,  Scott,  Sedgwick,  Stafford,  Stevens,  Seward,  Suniner,  Stan- 
ton,  and  Wichita.  The  third  division  shall  include  the  territory  embraced 
on  the  said  date  last  mentioned  in  the  counties  of  Allen,  Anderson,  Bourbon, 
Cherokee,  Coffey,  Chautauqua,  Crawford,  Elk,  Greenwood.  Labette,  Linn.  Mi- 
ami,* Montgomery,  Neosho,  Wilson,  and  Woodson.  Terms  of  the  district 
court  for  the  first  division  shall  be  held  at  Leavenworth  on  the  second  Monday 


JUDICIAL    CODE  687 

in  October;  at  Topoka  on  the  second  Monday  in  April;  at  Kansas  City 
on  the  second  Monday  in  January  and  the  first  Monday  in  October;  and 
at  Salina  on  the  second  Monday  in  May;  but  no  cause,  action,  or  proceed- 
ing shall  be  tried  or  considered  at  any  term  held  at  Salina  unless  by  consent 
of  all  the  parties  thereto,  or  by  order  of  the  court  for  cause.  Terms  of 
^the  district  court  for  the  second  division  shall  be  held  at  Wichita  on  the 
second  Mondays  in  March  and  September;  and  for  the  third  division,  at  Fort 
Scott  on  the  first  Monday  in  May  and  the  second  Monday  in  November. 
The  clerk  of  the  district  court  shall  appoint  two  deputies,  one  of  whom  shall 
reside  and  keep  his  office  at  Fort  Scott,  and  the  other  at  Wichita;  and  the 
marshal  shall  appoint  a  deputy  who  shall  reside  and  keep  his  office  at  Fort 
Scott. 

Annotated,  our  §  114  note  m. 

§  83.  The  state  of  Kentucky  is  divided  into  two  districts,  to  be  known 
as  the  eastern  and  western  districts  of  Kentucky.  The  eastern  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Carroll,  Trimble,  Henry,  Shelby,  Anderson,  Mercer, 
Boyle,  Gallatin,  Boone,  Kenton,  Campbell,  Pendleton,  Grant,  Owen,  Franklin, 
Bourbon,  Scott,  Woodford,  Fayette,  Jessamine,  Garrard,  Madison,  Lincoln, 
Rockcastle,  Pulaski,  Wayne,  Whitley,  Bell,  Knox,  Harlan,  Laurel,  Clay,  Leslie, 
Letcher,  Perry,  Owsley,  Jackson,  Estill,  Lee,  Breathitt,  Knott,  Pike,  Floyd, 
Magofiin,  Martin,  Johnson,  Lawrence,  Boyd,  Greenup,  Carter,  Elliott,  Morgan, 
Wolfe,  Powell,  Menifee,  Clark,  Montgomery,  Bath,  Rowan,  Lewis,  Fleming, 
Mason,  Bracken,  Robertson,  Nicholas,  and  Harrison,  with  the  waters  thereof. 
Terms  of  the  district  court  for  the  eastern  district  shall  be  held  at  Frank- 
fort on  the  second  Monday  in  March  and  the  fourth  Monday  in  September ; 
at  Covington  on  the  first  Monday  in  April  and  the  third  Monday  in  October; 
at  Richmond  on  the  fourth  Monday  in  April  and  the  second  Monday  in  No- 
vember; at  London  on  the  second  Monday  in  May  and  the  fourth  Monday  in 
November;  at  Catlettsburg  on  the  fourth  Monday  in  May  and  the  second 
Monday  in  December;  and  at  Jackson  on  the  first  Monday  in  March  and 
the  third  Monday  in  September:  Provided,  That  suitable  rooms  and  accom- 
modations are  furnished  for  holding  court  at  Jackson  free  of  expense  to  the 
government  until  such  time  as  a  public  building  shall  be  erected  there.  The 
western  district  shall  include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten,  in  the  counties  of  Oldham,  Jefferson,  Spencer, 
Bullitt,  Nelson,  Washington,  Marion,  Larue,  Taylor,  Casey,  Green,  Adair, 
Russell,  Clinton,  Cumberland,  Monroe,  Metcalfe,  Allen,  Barren,  Simpson,  Lo- 
gan, Warren,  Butler,  Hart,  Edmonson,  Grayson,  Hardin,  Meade,  Breckinridge, 
Hancock,  Daviess,  Ohio,  McLean,  Muhlenberg,  Todd,  Christian,  Trigg,  Lyon, 
Caldwell,  Livingston,  Crittenden,  Hopkins,  Webster,  Henderson,  Union,  Mar- 
shall, Calloway,  McCracken,  Graves,  Ballard,  Carlisle,  Hickman,  and  Fulton, 
with  the  waters  thereof.  Terms  of  the  district  court  for  the  western  district 
shall  be  held  at  Louisville  on  the  second  Mondays  in  March  and  October;  at 
Owensboro  on  the  first  Monday  in  May  and  the  fourth  Monday  in  November; 
at  Paducah  on  the  third  Mondays  in  April  and  November;  and  at  Bowling 
Green  on  the  third  Monday  in  May  and  the  second  Monday  in  December. 
The  clerk  of  the  court  for  the  eastern  district  shall  maintain  an  office  in 
charge  of  himself  or  a  deputy  at  Frankfort,  at  Covington,  at  Richmond,  at 


688  APPENDIX 

London,  at  Catlettsburg,  and  at  Jackson;  and  the  clerk  for  the  western 
district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at  Louis- 
ville, at  Owensboro,  at  Paducah,  and  at  Bowling  Green,  each  of  which  offices 
shall  be  kept  open  at  all  times  for  the  transaction  of  the  business  of  said 
court.  The  clerks  of  the  courts  for  the  eastern  and  western  districts,  upon 
issuing  original  process  in  a  civil  action,  shall  make  it  returnable  to  the 
court  nearest  to  the  county  of  the  resiednce  of  the  defendant,  or  of  that 
defendant  whose  county  is  nearest  to  a  court,  and  shall,  immediately  upon 
payment  by  the  plaintiff  of  his  fees  accrued,  send  the  papers  filed  to  the 
clerk  of  the  court  to  which  the  process  is  made  returnable;  and  whenever  th<j 
process  is  not  thus  made  returnable,  any  defendant  may,  upon  motion,  on  or 
before  the  calling  of  the  cause,  have  it  transferred  to  the  court  to  which  it 
should  have  been  sent  had  the  clerk  known  the  residence  of  the  defendant  when 
the  action  was  brought. 

Annotated,  our  §  115  note  n. 

§  84.  The  state  of  Louisiana  is  divided  into  two  judicial  districts,  to  be 
known  as  the  eastern  and  western  districts  of  Louisiana.  The  eastern  dis- 
trict shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  parishes  of  Assumption,  Iberia,  Jefferson,  Lafourche, 
Orleans,  Plaquemines,  Saint  Bernard,  Saint  Charles,  Saint  James,  Saint  John 
the  Baptist,  Saint  Mary,  Saint  Tammany,  Tangipahoa,  Terrebonne.  and  Wash- 
ington, which  shall  constitute  the  New  Orleans  division;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  parishes  of  Ascension,  East  Baton 
Rouge,  East  Feliciana,  Livingston,  Pointe  Coupee,  Saint  Helena,  West  Baton 
Rouge,  Iberville,  and  West  Feliciana,  which  shall  constitute  the  Baton  Rouge 
division  of  said  district.  Terms  of  the  district  court  for  the  Xew  Orleans 
division  shall  be  held  at  New  Orleans  on  the  third  Mondays  in  February, 
May,  and  November;  and  for  the  Baton  Rouge  division,  at  Baton  Rouge  on 
the  second  Mondays  in  April  and  November.  The  clerk  of  the  court  for  the 
eastern  district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy 
at  Xew  Orleans  and  at  Baton  Rouge  which  shall  be  kept  open  at  all  times 
for  the  transaction  of  the  business  of  the  court.  The  western  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  parishes  of  Saint  Landry,  Evangeline,  Sant  Martin,  Lafayette, 
and  Vermilion,  which  shall  constitute  the  Opelousas  division  of  said  district; 
also  the  territory  embraced  on  the  date  last  mentioned  in  the  parishes  of 
Rapides,  Avoyelles,  Catahoula,  La  Salle,  Grant,  and  Winn,  which  shall  con- 
stitute the  Alexandria  division  of  said  district;  also  the  territory  embraced 
on  the  said  date  last  mentioned  in  the  parishes  of  Caddo,  De  Soto,  Bossier, 
Webster,  Claiborne,  Bienville,  Natchitoches,  Sabine,  and  Red  River,  which 
shall  constitute  the  Shreveport  division  of  said  district;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  parishes  of  Ouachita,  Franklin, 
Richland,  Morehouse,  East  Carroll,  West  Carroll,  Madison,  Tensas,  Concordia, 
Union,  Caldwell,  Jackson,  and  Lincoln,  which  shall  constitute  the  Monroe 
division  of  said  district;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  parishes  of  Acadia,  Calcasieu,  Cameron,  and  Vernon,  which 
s'iall  constitute  the  Lake  Charles  division  of  said  district.  Terms  of  the 
district  court  for  the  Opelousas  division  shall  be  held  at  Opelousas  on  the 
first  Mondays  in  January  and  June;  for  the  Alexandria  division,  at  Alexan- 


JUDICIAL    CODE  689 

dria  on  the  fourth  Mondays  in  January  and  June;  for  the  Shreveport  divi- 
sion, at  Shreveport  on  the  third  Mondays  in  February  and  October;  for  the 
Monroe  division,  at  Monroe  on  the  first  Mondays  in  April  and  October;  and 
for  the  Lake  Charles  division,  at  Lake  Charles  on  the  third  Mondays  in 
May  and  December.  The  clerk  of  the  court  for  the  western  district  shall 
nlaintain  an  office  in  charge  of  himself  or  a  deputy  at  Opelousas,  at  Alex- 
andria, at  Shreveport,  at  Monroe,  and  at  Lake  Charles,  which  shall  be  kept 
open  at  all  times  for  the  transaction  of  the  business  of  the  court. 

Annotated,  our  §  166  note  m. 

§  85.  The  state  of  Maine  shall  constitute  one  judicial  district,  to  be  known 
as  the  district  of  Maine.  Terms  of  the  district  court  shall  be  held  at  Port- 
land on  the  first  Tuesdays  in  February  and  December;  at  Bangor  on  the 
first  Tuesday  in  June;  and  at  Bath  on  the  first  Tuesday  in  September. 

Annotated,  our  §  117  note  o,  as  amended,  Act  Dec.  22,  1911,  ch. 

7.     See  our  §  117. 

§  86.  The  state  of  Maryland  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Maryland.  Terms  of  the  district  court  shall  be 
held  at  Baltimore  on  the  first  Tuesdays  in  March,  June,  September,  and 
December;  and  at  Cumberland  on  the  second  Monday  in  May  and  the  last 
Alonday  in  September.  The  clerk  of  the  court  shall  appoint  a  deputy  who 
shall  reside  and  maintain  an  office  at  Cumberland,  unless  the  clerk  shall 
himself  reside  there;  and  the  marshal  shall  also  appoint  a  deputy,  who 
shall  reside  and  maintain  an  office  at  Cumberland,  unless  he  shall  himself 
reside  there. 

Annotated,  our  §  118  note  p. 

§  87.  The  state  of  Massachusetts  shall  constitute  one  judicial  district, 
to  be  known  as  the  district  of  Massachusetts.  -Terms  of  the  district  court 
shall  be  held  at  Boston  on  the  third  Tuesday  in  March,  the  fourth  Tuesday 
in  June,  the  second  Tuesday  in  September,  and  the  first  Tuesday  in  De- 
cember; and  at  Springfield,  on  the  second  Tuesdays  in  May  and  December: 
Provided,  That  suitable  rooms  and  accommodations  for  holding  court  at 
Springfield  shall  be  frunished  free  of  expense  to  the  government  until  such 
time  as  a  Federal  building  shall  be  erected  there  for  that  purpose.  The 
marshal  and  the  clerk  for  said  district  shall  each  appoint  at  least  one  dep- 
uty, to  reside  in  Springfield  and  to  maintain  an  office  at  that  place. 

Annotated,  our  §  119  note  q. 

§  88.  The  state  of  Michigan  is  divided  into  two  judicial  districts,  to  be 
known  as  the  eastern  and  western  districts  of  Michigan.  The  eastern  district 
shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Alcona,  Alpena,  Arenac,  Bay,  Cheboygan,  Clare, 
Crawford,  Genesee,  Gladwin,  Gratiot,  Huron,  losco,  Isabella,  Midland,  Mont- 
morency,  Ogemaw,  Oscoda,  Otsego,  Presque  Isle,  Roscommon,  Saginaw,  Shia- 
wassee,  and  Tuscola,  which  shall  constitute  the  northern  division;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Branch, 
Callioun,  Clinton,  Hillsdale,  Ingham,  Jackson,  Lapeer,  Lenawee,  Livingston, 
Macomb,  Monroe,  Oakland,  St.  Clair,  Sanilac,  Washtenaw,  and  Wayne,  which 
shall  constitute  the  southern  division  of  said  district.  Terms  of  the  district 
court  for  the  southern  division  shall  be  held  at  Detroit  on  the  first  Tuos 
days  in  March,  June,  and  November;  for  the  northern  division,  at  Bay  City 
Montg. — 44. 


690  APl'KMUX 

on  the  first  Tuesdays  in  May  and  October,  and  at  Port  Huron  in  the  dis- 
cretion of  the  judge  of  said  court  and  at  such  times  as  he  shall  appoint 
therefor.  There  shall  also  be  held  a  special  or  adjourned  term  of  the  district 
court  at  Bay  City  for  the  hearing  of  admiralty  causes,  beginning  in  tin- 
month  of  February  in  each  year.  The  western  district  shall  include  the 
territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Alger,  Baraga,  Chippewa,  Delta,  Dickinson,  Gogebic,  Hough - 
ton,  Iron,  Keweenaw,  Luce,  Mackinac,  Marquette,  Menominee,  Ontonagon, 
and  Schoolcraft,  which  shall  constitute  the  northern  division;  also  the  ter- 
ritory embraced  on  the  said  date  last  mentioned  in  the  counties  of  Allegan, 
Antrim,  Barry,  Benzie,  Berrien,  Cass,  Charlevoix,  Eaton,  Emmett,  Grand 
Traverse,  Ionia,  Kalamazoo,  Kalkaska,  Kent,  Lake,  Leelenau,  Manistee,  Mason, 
Mecosta,  Missaukee,  Montcalm,  Muskegon,  Newaygo,  Oceana,  Osceola,  Ottawa, 
St.  Joseph,  Van  Buren,  and  Wexford,  which  shall  constitute  the  southern 
division  of  said  district.  Terms  of  the  district  court  for  the  southern  divi 
sion  shall  be  held  at  Grand  Rapids  on  the  first  Tuesdays  in  March  and 
October;  and  for  the  northern  division,  at  Marquette  on  the  first  Tuesdays 
in  May  and  September.  All  issues  of  fact  shall  be  tried  at  the  terms  held 
in  the  division  where  such  suit  shall  be  commenced.  Actions  in  rem  and 
admiralty  may  be  brought  in  whichever  division  of  the  eastern  district  serv- 
ice can  be  had  upon  the  res.  Nothing  herein  contained  shall  prevent  tin- 
district  court  of  the  western  division  from  regulating,  by  general  rule,  tin- 
venue  of  transitory  actions  either  at  law  or  in  equity,  or  from  changing 
the  same  for  cause.  The  clerk  of  the  court  for  the  western  district  shall 
reside  and  keep  his  office  at  Grand  Rapids,  and  shall  also  appoint  a  deputy 
clerk  for  said  court  held  at  Marquette,  who  shall  reside  and  keep  his  office 
at  that  place.  The  marshal  for  said  western  district  shall  keep  an  office 
and  a  deputy  marshal  at  Marquette.  The  clerk  of  the  court  for  the  eastern 
district  shall  keep  his  office  at  the  city  of  Detroit,  and  shall  appoint  a 
deputy  for  the  court  held  at  Bay  City,  who  shall  reside  and  keep  his  office 
at  that  place.  The  marshal  for  said  district  shall  keep  an  office  and  a  deputy 
marshal  at  Bay  City,  and  mileage  on  service  of  process  in  said  northern 
division  shall  be  computed  from  Bay  City. 

Annotated,  our  §  120  note  r,  as  amended  July  9,  1912,  ch.  222.    See 

our  §  120. 

§  89.  The  state  of  Minnesota  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Minnesota.  It  is  divided  into  six  divisions,  to  be 
known  as  the  first,  second,  third,  fourth,  fifth  and  sixth  divisions.  The 
first  division  shall  include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten,  in  the  counties  of  Winona,  Wabasha,  Olmsted. 
Dodge,  Steele,  Mower,  Fillmore,  and  Houston.  The  second  division  shall  in- 
clude the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Freeborn,  Faribault,  Martin,  Jackson,  Nobles,  Rock,  Pipestone,  Murray, 
Cottonwood,  Watomvan,  Blue  Earth,  Waseca,  Lesueur,  Nicollet,  Brown,  Red- 
wood, Lyon,  Lincoln,  Yellow  Medicine,  Sibley,  and  Lac  qui  Parle.  The  third 
division  shall  include  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Chisago,  Washington,  Ramsey,  Dakota,  Goodhue,  Rice,  and 
Scott.  The  fourtli  division  shall  include  the  territory  embraced  on  the  date- 
last  mentioned  in  the  counties  of  Hennepin,  Wright,  Meeker,  Kandiyohi,  Swift. 


JUDICIAL    CODE  691 

Chippewa,  Renville,  McLeod,  Carver,  Anoka,  Sherburne,  and  Isanti.  The  fifth 
division  shall  include  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Cook,  Lake,  Saint  Louis,  Itasca,  Koochiching,  Cass,  Crow 
Wing,  Aitkin,  Carlton,  Pine,  Kanabec,  Mille  Lacs,  Morrison,  and  Benton. 
The  sixth  division  shall  include  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Stearns,  Pope,  Stevens,  Bigstone,  Traverse,  Grant, 
Douglas,  Todd,  Ottertail,  Roseau,  Wilkin,  Clay,  Becker,  Wadena,  Norman, 
Polk,  Red  Lake,  Marshall,  Kittson,  Beltrami,  Clearwater,  Mahnomen,  and 
Hubbard.  Terms  of  the  district  court  for  the  first  division  shall  be  held  at 
Winona  on  the  third  Tuesdays  in  May  and  November;  for  the  second  divi- 
sion, at  Mankato  on  the  fourth  Tuesdays  in  April  and  October;  for  the 
third  division,  at  Saint  Paul  on  the  first  Tuesdays  in  June  and  December; 
for  the  fourth  division,  at  Minneapolis  on  the  first  Tuesdays  in  April  and 
October;  for  the  fifth  division,  at  Duluth  on  the  second  Tuesdays  in  Janu- 
ary and  July;  and  for  the  sixth  division,  at  Fergus  Falls  on  the  first  Tuesday 
in  May  and  second  Tuesday  in  November.  The  clerk  of  the  court  shall  ap- 
point a  deputy  clerk  at  each  place  where  the  court  is  now  required  to  be 
held  at  which  the  clerk  shall  not  himself  reside,  who  shall  keep  his  office 
and  reside  at  the  place  appointed  for  the  holding  of  said  court. 

Annotated,  our  §  121  note  s. 

§  90.  The  state  of  Mississippi  is  divided  into  two  judicial  districts,  to  be 
known  as  the  northern  and  southern  districts  of  Mississippi.  The  northern 
district  shall  include  the  territory  embraced  on  the  first  day  of  July,  nine- 
teen hundred  and  ten,  in  the  counties  of  Alcorn,  Attala,  Chickasaw,  Choctaw, 
Clay,  Itawamba,  Lee,  Lowndes,  Monroe,  Oktibbeha,  Pontotoc,  Prentiss,  Tish- 
omingo,  and  Winston,  which  shall  constitute  the  eastern  division  of  said 
district;  also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Benton,  Coahoma,  Calhoun,  Carroll,  De  Soto,  Grenada,  Lafayette, 
Marshall,  Montgomery,  Panola,  Quitman,  Tallahatchie,  Tate,  Tippah,  Tunica, 
Union,  Webster,  and  Yalobusha,  which  shall  constitute  the  western  division 
of  said  district.  Terms  of  the  district  court  for  the  eastern  division  shall 
be  held  at  Aberdeen  on  the  first  Mondays  in  April  and  October;  and  for  the 
western  division,  at  Oxford  on  the  first  Mondays  in  June  and  December,  and 
at  Clarksdale  on  the  third  Mondays  in  June  and  December:  Provided,  That 
suitable  rooms  and  accommodations  for  holding  court  at  Clarksdale  are 
furnished  free  of  expense  to  the  United  States.  The  southern  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Adams,  Amite,  Copiah,  Covington,  Franklin,  Hinds, 
Holmes,  Jefferson,  Jefferson  Davis,  Lawrence,  Lincoln,  Leflore,  Madison,  Pike, 
Rankin,  Simpson,  Smith,  Scott,  Wilkinson,  and  Yazoo,  which  shall  constitute 
the  Jackson  division ;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Bolivar,  Claiborne,  Issaquena,  Sharkey,  Sunflower,  Warren, 
and  Washington,  which  shall  constitute  the  western  division;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  counties  of  Clarke,  Jones, 
Jasper,  Kemper,  Lauderdale,  Leake,  Neshoba,  Newton,  Noxubee,  and  Wayne, 
which  shall  constitute  the  eastern  division;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Forest,  Greene,  Hancock,  Har- 
rison, Jackson,  Lamar,  Marion,  Perry,  and  Pearl  River,  which  constitutes 
the  southern  division  of  said  district.  Terms  of  the  district  court  for  the 


C92  APPENDIX 

Jackson  division  shall  be  held  at  Jackson  on  the  first  Mondays  in  May  and 
November;  for  the  western  division,  at  Vicksburg  on  the  first  Mondays  in 
•  January  and  July;  for  the  eastern  division,  at  Meridian  on  the  second 
Mondays  in  March  and  September;  and  for  the  southern  division,  at  Biloxi 
on  the  third  Mondays  in  February  and  August.  The  clerk  of  the  court  for 
each  district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at 
cuc-h  place  in  his  district  at  which  court  is  now  required  to  be  held,  at  which 
he  shall  not  himself  reside,  which  shall  be  kept  open  at  all  times  for  the 
transaction  of  the  business  of  the  court.  The  marshal  for  each  of  said  districts 
shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at  each  place  of 
holding  court  in  his  district. 

Annotated,  our  §  122  note  t,  as  amended  May  27,  1912,  ch.  136. 

See  our  §  122. 

§  91.  The  state  of  Missouri  is  divided  into  two  judicial  districts,  to  be 
known  as  the  eastern  and  western  districts  of  Missouri.  The  eastern  district 
shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hun- 
dred and  ten,  in  the  city  of  Saint  Louis  and  the  counties  of  Audrian,  Craw- 
ford, Dent,  Franklin,  Gasconade,  Iron,  Jefferson,  Lincoln,  Maries,  Mont- 
gomery, Phelps,  Saint  Charles,  Saint  Francois,  Sainte  Genevieve,  Saint  Louis, 
Warren,  and  Washington,  which  shall  constitute  the  eastern  division  of  said 
district;  also  the  territory  embraced  on  the  date  last  mentioned  in  the  coun- 
ties of  Adair,  Chariton,  Clark,  Knox,  Lewis,  Linn,  Macon,  Marion,  Monroe, 
Pike,  Rails,  Randolph,  Schuyler,  Scotland,  and  Shelby,  which  shall  constitute 
the  northern  division  of  said  district;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Bollinger,  Butler,  Cape  Girardeau, 
Carter,  Dunklin,  Madison,  Mississippi,  New  Madrid,  Pemiscot,  Perry,  Rey- 
nolds, Ripley,  Scott,  Shannon,  Stoddard,  and  Wayne,  which  shall  constitute 
the  southeastern  division  of  said  district.  Terms  of  the  district  court  for 
the  eastern  division  shall  be  held  at  Saint  Louis  on  the  first  Mondays  in 
May  and  November,  and  at  Rolla  on  the  second  Mondays  in  January  and 
June:  Provided,  That  suitable  rooms  and  accommodations  for  holding  court 
at  Rolla  are  furnished  free  of  expense  to  the  United  States;  for  the  northern 
division,  at  Hannibal  on  the  fourth  Monday  in  May  and  the  first  Monday 
in  December;  and  for  the  southeastern  division,  at  Cape  Girardeau  on  the 
second  Mondays  in  April  and  October.  The  western  district  shall  include 
the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten, 
in  the  counties  of  Bates,  Caldwell,  Carroll,  Cass,  Clay,  Grundy,  Henry,  Jack- 
son, Johnson,  Lafayette,  Livingston,  Mercer,  Putnam,  Ray,  Saint  Clair,  Sa- 
line, and  Sullivan,  which  shall  constitute  the  western  division;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Barton, 
Barry,  Jasper,  Lawrence,  McDonald,  Newton,  Stone,  and  Vernon,  which  shall 
constitute  the  southwestern  division;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Andrew,  Atchison,  Buchanan,  Clinton,  Da- 
viess,  Dekalb,  Gentry,  Holt,  Harrison,  Nodaway,  Platte,  and  Worth,  which 
shall  constitute  the  Saint  Joseph  division;  also  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Benton,  Boone,  Callaway,  Cooper, 
Camden,  Cole,  Hickory,  Howard,  Miller,  Moniteau,  Morgan,  Osage,  and  Pettis, 
which  shall  constitute  the  central  division ;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Christian,  Cedar,  Dade,  Dallas,  Douglas, 


JUDICIAL    CODE  693 

Greene,  Howell,  Laclede,  Oregon,  Ozark,  Polk,  Pulaski,  Taney,  Texas,  Webster, 
and  Wright,  which  constitutes  the  southern  division.  Terms  of  the  district 
court  for  the  western  division  shall  be  held  at  Kansas  City  on  the  fourth 
Monday  in  April  and  first  Monday  in  November,  and  at  Chillicothe  on  the 
fourth  Monday  in  May  and  the  first  Monday  in  December:  Provided,  That 
suitable  rooms  and  accommodations  for  holding  court  at  Chillicothe  are  fur- 
nished free  of  expense  to  the  United  States;  for  the  southwestern  division,  at 
Joplin  on  the  second  Mondays  in  June  and  January;  for  the  Saint  Joseph 
division,  at  Saint  Joseph  on  the  first  Monday  in  March  and  third  Monday  in 
September;  for  the  central  division,  at  Jefferson  City  on  the  third  Mondays 
in  March  and  October;  and  for  the  southern  division,  at  Springfield  on  the 
first  Mondays  .in  April  and  October.  The  clerk  of  the  court  for  the  western 
district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at  Kansas 
City,  at  Jefferson  City,  at  Saint  Joseph,  at  Chillicothe,  at  Joplin,  and  at 
Springfield,  which  shall  be  kept  open  at  all  times  for  the  transaction  of  the 
business  of  the  court.  The  marshal  for  each  district  shall  also  maintain  an 
office  in  charge  of  himself  or  a  deputy  at  each  place  at  which  court  is  now 
held  in  his  district. 

Annotated,  our   §   123   note   v,   as   amended   Dec.   22,   1911,  ch.   8. 
See  our  §  123. 

§  92.  The  state  of  Montana  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Montana.  Terms  of  the  district  court  shall  be 
held  at  Helena  on  the  first  Mondays  in  April  and  November;  at  Butte  on 
the  first  Tuesdays  in  February  and  September;  at  Great  Falls  on  the  first 
Mondays  in  May  and  October;  at  Missoula  on  the  first  Mondays  in  January 
and  June;  and  at  Billings  on  the  first  Mondays  in  March  and  August.  Causes, 
civil  and  criminal,  may  be  transferred  by  the  court  or  judge  thereof  from 
Helena  to  Butte  or  from  Butte  to  Helena,  or  from  Helena  or  Butte  to  Great 
Falls,  or  from  Great  Falls  to  Helena  or  Butte,  in  said  district,  when  the 
convenience  of  the  parties  or  the  ends  of  justice  would  be  promoted  by  the 
transfer;  and  any  interlocutory  order  may  be  made  by  the  court  or  judge 
thereof  in  either  place. 

Annotated,  our  §  124  note  v. 

§  93.  The  state  of  Nebraska  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Nebraska.  Said  district  is  divided  into  eight  divi- 
sions. The  territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Douglas,  Sarpy,  Washington,  Dodge,  Colfax,  Platte, 
Nance,  Boone,  Wheeler,  Burt,  Thurston,  Dakota,  Cuming,  Cedar,  and  Dixon, 
shall  constitute  the  Omaha  division;  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Madison,  Antelope,  Knox,  Pierce,  Stanton, 
Wayne,  Holt,  Boyd,  Rock,  Brown,  and  Keya  Paha,  shall  constitute  the  Nor- 
folk division;  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Cherry,  Sheridan,  Dawes,  Box  Butte,  and  Sioux,  shall  constitute 
the  Chadron  division ;  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Hall,  Merrick,  Howard,  Greeley,  Garfield,  Valley,  Sherman, 
Buffalo,  Custer,  Loup,  Blaine,  Thomas,  Hooker,  and  Grant,  shall  constitute 
the  Grand  Island  division ;  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Lincoln,  Lawson,  Logan,  McPherson,  Keith,  Deuel, 
Garden,  Morrill,  Cheyenne,  Kimball,  Banner,  and  Scott's  Bluff,  shall  con- 


694:  Al'I'K.NDIX 

stitute  the  North  Platte  division;  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Cass,  Otoe,  Johnson,  Nemaha,  Pawnee,  Richard- 
son, Gage,  Lancaster,  Saunders,  Butler,  Seward,  Saline,  Jefferson,  Thayer,. 
Fillmore,  York,  Polk,  and  Hamilton,  shall  constitute  the  Lincoln  division; 
the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Clay, 
Nuckolls,  Webster,  Adams,  Kearney,  Franklin,  Harlan,  and  Phelps,  shall 
constitute  the  Hastings  division ;  and  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Gosper,  Furnas,  Red  Willow,  Frontier,  Hayes, 
Hitchcock,  Dundy,  Chase,  and  Perkins,  shall  constitute  the  McCook  divi- 
sion. Terms  of  the  district  court  for  the  Omaha  division  shall  be  held 
at  Omaha  on  the  first  Monday  in  April  and  the  fourth  Monday  in  September; 
for  the  Norfolk  division,  at  Norfolk  on  the  third  Monday  in  September; 
for  the  Chadron  division,  at  Chadron  on  the  second  Monday  in  September; 
for  the  Grand  Island  division,  at  Grand  Island  on  the  second  Monday  in 
January;  for  the  North  Platte  division,  at  North  Platte  on  the  second  Monday 
in  June;  for  the  Lincoln  division,  at  Lincoln  on  the  second  Monday  in 
May  and  the  first  Monday  in  October;  for  the  Hastings  division,  at  Hastings 
on  the  second  Monday  in  March;  and  for  the  McCook  division,  at  McCook 
on  the  first  Monday  in  March :  Provided,  That  where  provision  is  made 
herein  for  holding  court  at  places  where  there  are  no  Federal  buildings,  a 
suitable  room  in  which  to  hold  court,  together  with  light  and  heat,  shall  be 
provided  by  the  city  or  county  where  such  court  is  held,  without  any  expense 
to  the  United  States.  The  clerk  of  the  court  shall  appoint  a  deputy  for 
each  division  of  the  district  in  which  he  does  not  himself  reside,  who  shall 
keep  his  office  and  reside  at  the  place  of  holding  court  in  the  division  for 
which  he  is  appointed. 

Annotated,  our  §  125  note  w. 

§  94.  The  state  of  Nevada  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Nevada.  Terms  of  the  district  court  shall  be  held 
at  Carson  City  on  the  first  Mondays  in  February,  May,  and  October.  • 

Annotated,  our  §  126  note  x. 

§  95.  The  state  of  New  Hampshire  shall  constitute  one  judicial  district,  to 
be  known  as  the  district  of  New  Hampshire.  Terms  of  the  district  court 
shall  be  held  at  Portsmouth  on  the  third  Tuesdays  in  March  and  September; 
at  Concord  on  the  third  Tuesdays  in  June  and  December;  and  at  Littleton 
on  the  last  Tuesday  in  August. 

Annotated,  our  §  127  note  y,  as  amended  Aug.  23,  1912,  ch.  344. 

See  our  §  127. 

§  96.  The  state  of  New  Jersey  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  New  Jersey.  Terms  of  the  district  court  shall  be 
held  at  Trenton  on  the  third  Tuesdays  in  January,  April,  June,  and  September. 
At  each  term  of  the  district  court  it  shall  be  lawful  for  the  judge  holding 
such  term,  on  consent  of  both  parties,  or  on  application  therefor  and  good 
cause  shown  by  either  party  to  any  civil  cause  set  for  trial  or  hearing  at 
said  term,  to  order  such  cause  to  be  held  or  tried  at  the  city  of  Newark, 
in  said  district,  upon  the  day  set  for  that  purpose  by  said  judge:  Provided, 
That  such  application  shall  be  made  to  said  judge,  either  in  vacation  or 
term  time,  at  least  one  week  before  the  date  set  for  trial  of  said  cause,  and 
on  at  least  five  days'  notice  to  the  opposite  party  or  his  or  her  attorney; 


JUDICIAL    CODE  695 

and  writs  of  subpoena  to  compel  the  attendance  of  witnesses  at  said  city  of 

Newark  may  issue,  and  jurors  summoned  to  attend  said  term  may  be  ordered 

by  said  judge  to  be  in  attendance  upon  said  court  in  the  city  of  Newark. 

Annotated,  our   §   128   note  z,  as   amended  Feb.   14,  1912,  ch.  53. 

See  our  §  128. 

*§  97.  The  state  of  New  York  is  divided  into  four  judicial  districts,  to  be 
known  as  the  northern,  eastern,  southern,  and  western  districts  of  New  York. 
The  northern  district  shall  include  the  territory  embraced  on  the  first  day 
of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Albany,  Broome,  Cayuga, 
Chenango,  Clinton,  Cortland,  Delaware,  Essex,  Franklin,  Fulton,  Hamilton, 
Herkimer,  Jefferson,  Lewis,  Madison,  Montgomery,  Oneida,  Onondaga,  Oswego, 
Otsego,  Rensselaer,  Saint  Lawrence,  Saratoga,  Schenectady,  Schoharie,  Tioga, 
Tompkins,  Warren,  and  Washington,  with  the  waters  thereof.  Terms  of 
the  district  court  for  said  district  shall  be  held  at  Albany  on  the  second 
Tuesday  in  February;  at  Utica  on  the  first  Tuesday  in  December;  at  Bingham- 
ton  on  the  second  Tuesday  in  June;  at  Auburn  on  the  first  Tuesday  in  Oc- 
tober; at  Syracuse  on  the  first  Tuesday  in  April;  and,  in  the  discretion 
of  the  judge  of  the  court,  one  term  annually  at  such  time  and  place  within 
the  counties  of  Saratoga,  Onondaga,  Saint  Lawrence,  Clinton,  Jefferson,  Os- 
wego, and  Franklin,  as  he  may  from  time  to  time  appoint.  Sucli  appoint- 
ment shall  be  made  by  notice  of  a  least  twenty  days  published  in  a  news- 
paper published  at  the  place  where  said  court  is  to  be  held.  The  eastern 
district  shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Richmond,  Kings,  Queens,  Nassau,  and 
Suffolk,  with  the  waters  thereof.  Terms  of  the  district  court  for  said 
district  shall  be  held  at  Brooklyn  on  the  first  Wednesday  in  every  month. 
The  southern  district  shall  include  the  territory  embraced  on  the  first  day 
of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Columbia,  Dutchess, 
Greene,  New  York,  Orange,  Putnam,  Rockland,  Sullivan,  Ulster,  and  West- 
chester,  with  the  waters  thereof.  Terms  of  the  district  court  for 'said  district 
shall  be  held  at  New  York  City  on  the  first  Tuesday  in  each  month.  The 
district  courts  of  the  southern  and  eastern  districts  shall  have  concurrent 
jurisdiction  over  the  waters  within  the  counties  of  New  York,  Kings,  Queens, 
Nassau,  Richmond,  and  Suffolk,  and  over  all  seizures  made  and  all  matters 
done  in  such  waters;  all  processes  or  orders  issued  within  either  of  said 
courts  or  by  any  judge  thereof  shall  run  and  be  executed  in  any  part  of 
said  waters.  The  western  district  shall  include  the  territory  embraced  on 
the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Allegany, 
Cattaraugus,  Chautauqua,  Chemung,  Erie,  Genesee,  Livingston,  Monroe,  Ni- 
agara, Ontario,  Orleans,  Schuyler,  Seneca,  Steuben,  Wayne,  Wyoming,  and 
Yates,  with  the  waters  thereof.  Terms  of  the  district  court  for  said  district 
shall  be  held  at  Elmira  on  the  second  Tuesday  in  January;  at  Buffalo  on 
the  second  Tuesdays  in  March  and  November ;  at  Rochester  on  the  second 
Tuesday  in  May;  at  Jamestown  on  the  second  Tuesday  in  July;  at  Lockport 
on  the  second  Tuesday  in  October;  and  at  Canandaigua  on  the  second  Tues- 
day in  September.  The  regular  sessions  of  the  district  court  for  the  western 
district  for  the  hearing  of  motions  and  for  proceedings  in  bankruptcy  And 
the  trial  of  cause's  in  admiralty,  shall  be  held  at  Buffalo  at  least  two  weeks 
in  each  month  of  the  year,  except  August,  unless  the  business  is  sooner 


696  APPENDIX 

disposed  of.  The  times  for  holding  the  same  and  such  other  special  ses- 
sions as  the  court  shall  deem  necessary  shall  be  fixed  by  rules  of  the  court. 
All  process  in  admiralty  causes  and  proceedings  shall  be  made  returnable 
at  Buffalo.  The  judge  of  any  district  in  the  state  of  New  York  may  per- 
form the  duties  of  the  judge  of  any  other  district  in  such  state  upon  the 
request  of  any  resident  judge  entered  in  the  minutes  of  his  court;  and  in 
such  cases  such  judge  shall  have  the  same  powers  as  are  vested  in  the 
resident  judge. 

Annotated,  our  §   130  note  a. 

§  98.  The  state  of  North  Carolina  is  divided  into  two  districts,  to  be  known 
as  the  eastern  and  western  districts  of  North  Carolina.  The  eastern  dis- 
trict shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Beaufort,  Bertie,  Bladen,  Brunswick, 
Camden,  Chatham,  Cumberland,  Currituck,  Craven,  Columbus,  Chowan,  Carte- 
ret,  Dare,  Duplin,  Durham,  Edgecombe,  Franklin,  Gates,  Granville,  Greene, 
Halifax,  Harnett,  Hertford,  Hyde,  Johnston,  Jones,  Lenoir,  Lee,  Martin, 
Moore,  Nash,  New  Hanover,  Northampton,  Onslow,  Pamlico,  Pasquotank, 
Fender,  Perquimans,  Person,  Pitt,  Robeson,  Richmond,  Sampson,  Scotland, 
Tyrell,  Vance,  Wake,  Warren,  Washington,  Wayne,  and  Wilson.  Terms  of 
the  district  court  for  the  eastern  district  shall  be  held  at  Elizabeth  City 
on  the  second  Mondays  in  April  and  October;  at  Washington  on  the  third 
Mondays  in  April  and  October;  at  Newbern  on  the  fourth  Mondays  in  April 
and  October;  at  Wilmington  on  the  second  Monday  after  the  fourth  Mondays 
in  April  and  October;  and  at  Raleigh  on  the  fourth  Monday  after  the  fourth 
Mondays  in  April  and  October:  Provided,  That  the  city  of  Washington 
shall  provide  and  furnish  at  its  own  expense  a  suitable  and  convenient  place 
for  holding  the  district  court  at  Washington  until  a  courthouse  shall  be 
constructed  by  the  United  States.  The  clerk  of  the  court  for  the  eastern 
district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at  Raleigh, 
at  Wilmington,  at  Newbern,  at  Elizabeth  City,  and  at  Washington  which 
shall  be  kept  open  at  all  times  for  the  transaction  of  the  business  of  the 
court.  The  western  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Alamance,  Alex- 
ander, Ashe,  Alleghany,  Anson,  Buncombe,  Burke,  Caswell,  Cabarrus,  Cataw- 
ba,  Cleveland,  Caldwell,  Clay,  Cherokee,  Davidson,  Davie,  Forsyfch,  Guilford, 
Gaston,  Graham,  Henderson,  Haywood,  Iredell,  Jackson,  Lincoln,  Montgomery, 
Mecklenburg,  Mitchell,  McDowell,  Madison,  Macon,  Orange,  Polk,  Randolph, 
Rockingham,  Rowan,  Rutherford,  Stanly,  Stokes,  Surry,  Swain,  Transylvania, 
Union,  Wilkes,  Watauga,  Yadkin,  and  Yancey.  Terms  of  the  district  court 
for  the  western  district  shall  be  held  at  Greensboro  on  the  first  Mondays 
in  June  and  December;  at  Statesville  on  the  third  Mondays  in  April  and 
October;  at  Salesbury  on  the  fourth  Mondays  in  April  and  October;  at  Ashe- 
ville  on  the  first  Mondays  in  May  and  November;  at  Charlotte  on  the  first 
Mondays  in  April  and  October;  and  at  Wilkesboro  on  the  fourth  Mondays  in 
May  and  November.  The  clerk  of  the  court  for  the  western  district  shall 
maintain  an  office  in  charge  of  himself  or  a  deputy  at  Greensboro,  at  Ashe- 
ville,  at  Statesville,  and  at  Wilkesboro,  which  shall  be  kept  open  at  all  times 
for  the  transaction  of  the  business  of  the  court. 
Annotated,  our  §  131  note  b. 


JUDICIAL    CODE  697 

§  99.  The  state  of  North  Dakota  shall  constitute  one  judicial  district,  to 
be  known  as  the  district  of  North  Dakota.  The  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Burleigh, 
Stutsman,  Logan,  Mclntosh,  Emmons,  Kidder,  Foster,  Wells,  McLean,  and 
Sheridan,  and  all  the  territory  in  said  state  lying  west  of  the  Missouri 
River  and  south  of  the  twelfth  standard  parallel,  shall  constitute  the  south- 
western division  of  said  district;  and  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Cass,  Richland,  Barnes,  Dickey,  Sargent, 
Lamoure,  Ransom,  Griggs,  and  Steele,  shall  constitute  the  southeastern  divi- 
sion; and  the  territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Grand  Forks,  Traill,  Walsh,  Pembina,  Cavalier,  and  Nelson,  shall  consti- 
tute the  northeastern  division;  and  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Ramsey,  Eddy,  Benson,  Towner,  Rolette,  Bot- 
tineau,  Pierce,  and  McHenry,  shall  constitute  the  northwestern  division ; 
and  the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Ward, 
Williams,  and  Montraille,  and  all  the  territory  in  said  state  lying  west  of 
the  Missouri  River,  and  north  of  the  twelfth  standard  parallel,  shall  con- 
stitute the  western  division.  The  several  Indian  reservations  and  parts  there- 
of within  said  state  shall  constitute  a  part  of  the  several  divisions  within 
which  they  are  respectively  situated.  Terms  of  the  district  court  for  the 
southwestern  division  shall  be  held  at  Bismarck  on  the  first  Tuesday  in 
March;  for  the  southeastern  division,  at  Fargo  on  the  third  Tuesday  in  May; 
for  the  northeastern  division,  at  Grand  Forks  on  the  second  Tuesday  in 
November;  for  the  northwestern  division,  at  Devils  Lake  on  the  first  Tuesday 
in  July;  and  for  the  western  division,  at  Minot  on  the  second  Tuesday  in 
October.  The  clerk  of  the  court  shall  maintain  an  office  in  charge  of  him- 
self or  a  deputy  at  each  place  at  which  court  is  now  held  in  his  district. 

Annotated,   our   §    132   note  c,   as   amended   Feb.   5,   1912,   ch.   28. 
See  our  §  132. 

§  100.  The  state  of  Ohio  is  divided  into  two  judicial  districts,  to  be  known 
as  the  northern  and  southern  districts  of  Ohio.  The  northern  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Ashland,  Ashtabula,  Cuyahoga,  Carroll,  Columbiana, 
Crawford,  Geauga,  Holmes,  Lake,  Lorain,  Medina,  Mahoning,  Portage,  Rich- 
land,  Summit,  Stark,  Tuscarawas,  Trumbull,  and  Wayne,  which  shall  con- 
stitute the  eastern  division;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Auglaize,  Allen,  Defiance,  Erie,  Fulton,  Henry, 
Hancock,  Hardin,  Huron,  Lucas,  Mercer,  Marion,  Ottawa,  Paulding,  Putnam, 
Seneca,  Sandusky,  Van  Wert,  Williams,  Wood,  and  Wyandotte,  which  shall 
constitute  the  western  division  of  said  district.  Terms  of  the  district  court 
for  the  eastern  division  shall  be  held  at  Cleveland  on  the  first  Tuesdays  in 
February,  April,  and  October,  and  at  Youngstown  on  the  first  Tuesday  after 
the  first  Monday  in  March;  and  for  the  western  division,  at  Toledo  on  the 
last  Tuesdays  in  April  and  October.  Grand  and  petit  jurors  summoned  for 
service  at  a  term  of  court  to  be  held  at  Cleveland  may,  if  in  the  opinion 
of  the  court  the  public  convenience  so  requires,  be  directed  to  serve  also 
at  the  term  then  being  held  or  authorized  to  be  held  at  Youngstown.  Crimes 
and  offenses  committed  in  the  eastern  division  shall  be  cognizable  at  the 
terms  held  at  Cleveland,  or  at  Youngstown,  as  the  court  may  direct.  Any 


098  APPENDIX 

suit  brought  in  the  eastern  division  may,  in  the  discretion  of  the  court,  be 
tried  at  the  term  held  at  Youngstown.  The  southern  district  shall  include 
the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Adams,  Brown,  Butler,  Champaign,  Clark,  Clermont,  Clinton, 
Darke,  Greene,  Hamilton,  Highland,  Lawrence,  Miami,  Montgomery,  Preble, 
Scioto,  Shelby,  and  Warren,  which  shall  constitute  the  western  division;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Athens, 
Belmont,  Coshocton,  Delaware,  Fairfield,  Fayette,  Franklin,  G'allia,  Guernsey, 
Harrison,  Hocking,  Jackson,  Jefferson,  Knox,  Licking,  Logan,  Madison,  Meigs, 
Monroe,  Morgan,  Morrow,  Muskingum,  Noble,  Perry,  Pickaway,  Pike,  Ross, 
Union,  Vinton,  and  Washington,  which  shall  constitute  the  eastern  division  of 
said  district.  Terms  of  the  district  court  for  the  western  division  shall  be 
held  at  Cincinnati  on  the  first  Tuesdays  in  February,  April,  and  Ofttober; 
and  for  the  eastern  division,  at  Columbus  on  the  first  Tuesdays  in  June  and 
December:  Provided,  That  terms  of  the  district  court  for  the  southern 
district  shall  be  held  at  Dayton  on  the  first  Mondays  in  May  and  November. 
Prosecutions  for  crimes  and  offenses  committed  in  any  part  of  said  district 
shall  also  be  cognizable  at  the  terms  held  at  Dayton.  All  suits  which  may 
be  brought  within  the  southern  district,  or  either  division  thereof,  may  be 
instituted,  tried,  and  determined  at  the  terms  held  at  Dayton. 

Annotated,  our  §  133  note  d. 

§  101.  The  state  of  Oklahoma  is  divided  into  two  judicial  districts,  to  be 
known  as  the  eastern  and  the  western  districts  of  Oklahoma.  The  eastern 
district  shall  include  the  territory  embraced  on  the  first  day  of  July,  nine- 
teen hundred  and  ten,  in  the  counties  of  Adair,  Atoka,  Bryan,  Craig,  Cherokee, 
Creek,  Choctaw,  Coal,  Carter,  Delaware,  Garvin,  Grady,  Haskell,  Hughes, 
Johnston,  Jefferson,  Latimer,  Le  Flore,  Love,  McClain,  Mayes,  Muskogee, 
Mclntosh,  McCurtain,  Murray,  Marshall,  Nowata,  Ottawa,  Okmulgee,  Ofuskee, 
Pittsburg,  Pushmataha,  Pontotoc,  Rogers,  Stephens,  Sequoyah,  Seminole,  Tulsa, 
Washington,  and  Wagoner.  Terms  of  the  district  court  for  the  eastern  dis- 
trict shall  be  held  at  Muskogee  on  the  first  Monday  in  January;  at  Vinita 
on  the  first  Monday  in  March;  at  Tulsa  on  the  first  Monday  in  April;  at 
South  McAlester  on  the  first  Monday  in  June;  at  Ardmore  on  the  first  Monday 
in  October;  and  at  Chickasha  on  the  first  Monday  in  November  in  each  year. 
The  western  district  shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Alfalfa,  Beaver,  Beckham, 
Blaine,  Caddo,  Canadian,  Cimarron,  Cleveland,  Comanche,  Custer,  Dewey, 
Ellis,  Garfield,  Grant,  Greer,  Harmon,  Harper,  Jackson,  Kay,  Kingfisher, 
Kiowa,  Lincoln.  Logan,  Majors,  Noble,  Oklahoma,  Osage,  Pawnee,  Payne. 
Pottawatomie,  Roger  Mills,  Texas,  Tillman,  Washita,  Woods,  and  Wood- 
ward. Terms  of  the  district  court  for  the  western  district  shall  be  held 
at  Guthrie  on  the  first  Monday  in  January;  at  Oklahoma  City  on  the 
first  Monday  in  March;  at  Enid  on  the  first  Monday  in  June;  at  Lawton 
on  the  first  Monday  in  September;  and  at  Woodward  on  the  first  Monday 
in  November:  Provided,  That  suitable  rooms  and  accommodations  for  hold- 
ing court  at  Woodward  are  furnished  free  of  expense  to  the  United  States. 
The  clerk  of  the  district  court  for  the  eastern  district  shall  keep  his  office 
at  Muskogee,  and  the  clerk  for  the  western  district  at  Guthrie,  and  shall 
maintain  an  office  in  charge  of  himself  or  a  deputy  at  Oklahoma  City. 
Annotated,  our  §  134  note  e. 


JUDICIAL    CODE  699 

§  102.  The  state  of  Oregon  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Oregon.  Terms  of  the  district  court  shall  be  held 
at  Portland  on  the  first  Mondays  in  March,  July,  and  November;  at  Pendle- 
ton  on  the  first  Tuesday  in  April;  and  at  Medford  on  the  first  Tuesday  in 
October.  The  marshal  and  the  clerk  for  said  district  shall  each  appoint, 
in  the  manner  provided  by  law,  at  least  one  deputy  at  Pendleton  and  one  at 
Medford,  who  shall  reside  and  maintain  an  office  at  each  of  said  places. 
Annotated,  our  §  135  note  f. 

§  103.  The  state  of  Pennsylvania  is  divided  into  three  judicial  districts, 
to  be  known  as  the  eastern,  middle,  and  western  districts  of  Pennsylvania. 
The  eastern  district  shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Berks,  Bucks,  Chester, 
Delaware,  Lancaster,  Lehigh,  Montgomery,  Northampton,  Philadelphia,  and 
Schuylkill.  Terms  of  the  district  court  shall  be  held  at  Philadelphia  on  the 
second  Mondays  in  March  and  June,  the  third  Monday  in  September,  and  the 
second  Monday  in  December,  each  term  to  continue  until  the  succeeding  term 
begins.  The  middle  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Adams,  Bradford, 
Cameron,  Carbon,  Center,  Clinton,  Columbia,  Cumberland,  Dauphin,  Franklin, 
Fulton,  Huntingdon,  Juniata,  Lackawanna,  Lebanon,  Luzerne,  Lycoming, 
Mifflin,  Monroe,  Montour,  Northumberland,  Perry,  Pike,  Potter,  Snyder,  Sul- 
livan, Susquehanna,  Tioga,  Union,  Wayne,  Wyoming,  and  York.  Terms  of 
the  district  court  shall  be  held  at  Scranton  on  the  fourth  Monday  in  February 
and  the  third  Monday  in  October;  at  Harrisburg  on  the  first  Mondays  in 
May  and  December;  and  at  Williamsport  on  the  second  Mondays  in  January 
and  June.  The  clerk  of  the  court  for  the  middle  district  shall  maintain 
an  office  in  charge  of  himself  or  a  deputy  at  Harrisburg;  and  civil  suits 
instituted  at  that  place  shall  be  tried  there,  if  either  party  resides  nearest 
that  place  of  holding  court,  unless  by  consent  of  parties  they  are  removed 
to  another  place  of  trial.  The  western  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  coun- 
ties of  Allegheny,  Armstrong,  Beaver,  Bedford,  Blair,  Butler,  Cambria, 
Clarion,  Clearfield,  Crawford,  Elk,  Erie,  Fayette,  Forest,  Greene,  Indiana, 
Jefferson,  Lawrence,  McKean,  Mercer,  Somerset,  Venango,  Warren,  Wash- 
ington, and  Westmoreland.  Terms  of  the  district  court  shall  be  held  at 
Pittsburg  on  the  first  Monday  in  May  and  the  third  Monday  in  October; 
and  at  Erie  on  the  third  Monday  in  July  and  the  second  Monday  in  January. 
Annotated,  our  §  136  note  g,  amended  Mch.  3,  1913,  ch.  113. 
See  our  §  136. 

§  104.  The  state  of  Rhode  Island  shall  constitute  one  judicial  district, 
to  be  known  as  the  district  of  Rhode  Island.  Terms  of  the  district  court 
shall  be  held  at  Providence  on  the  fourth  Tuesday  in  May  and  the  third 
Tuesday  in  November;  and  at  Newport  on  the  second  Tuesday  in  May  and 
the  third  Tuesday  in  October. 

Annotated,   our   §   137   note  h,   as   amended   Feb.   1,   1912,   ch.   27. 
See  our  §  137. 

§  105.  The  state  of  South  Carolina  is  divided  into  two  districts,  to  be 
known  as  the  eastern  and  western  districts  of  South  Carolina.  The  western 
district  shall  include  the  territory  embraced  on  the  first  day  of  July,  nine- 


700  APPENDIX 

teen  hundred  and  ten,  in  the  counties  of  Abbeville,  Anderson,  Cherokee,  Ches- 
ter, Edgefield,  Fairfield,  Greenville,  Greenwood,  Lancaster,  Laurens,  Newberry, 
Oconee,  Pickens,  Saluda,  Spartansburg,  Union,  and  York.  Terms  of  the 
district  court  for  the  western  district  shall  be  held  at  Greenville  on  the  third 
Tuesdays  in  April  and  October.  The  eastern  district  shall  include  the  terri- 
tory embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Aikcn,  Bamberg,  Barnwell,  Beaufort,  Berkeley,  Calhoun,  Charles- 
ton, Chesterfield,  Clarendon,  Colleton,  Darlington,  Dorchester,  Florence, 
Georgetown,  Hampton,  Horry,  Kershaw,  Lee,  Lexington,  Marion,  Marlboro, 
Orangeburg,  Richland,  Sumter,  and  Williamsburg.  Terms  of  the  district 
court  for  the  eastern  district  shall  be  held  at  Charleston  on  the  first  Tuesdays 
in  June  and  December;  at  Columbia  on  the  third  Tuesday  in  January  and 
the  first  Tuesday  in  November,  the  latter  term  to  be  solely  for  the  trial 
of  civil  cases;  and  at  Florence  on  the  first  Tuesday  in  March.  The  offices 
of  the  clerk  of  the  district  court  shall  be  at  Greenville,  and  at  Charleston; 
and  the  clerk  shall  reside  in  one  of  said  cities  and  have  a  deputy  in  the 
other. 

Annotated,  our  §138  note  i,  as  amended  Feb.  5,  1912,  ch.  28. 

See  our  §  138. 

§  106.  The  state  of  South  Dakota  shall  constitute  one  judicial  district, 
to  be  known  as  the  district  of  South  Dakota.  The  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Aurora,  Bt-adle, 
Bon  Homme,  Brookings,  Brule,  Charles  Mix,  Clay,  Davison,  Douglas,  Gregory, 
Hanson,  Hutchinson,  Kingsbury,  Lake,  Lincoln,  McCook,  Miner,  Minnehaha, 
Moody,  Sanborn,  Turner,  Union,  and  Yankton,  and  in  the  Yankton  Indian 
reservation,  shall  constitute  the  southern  division  of  said  district;  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties  of  Brown.  Camp- 
bell, Clark,  Codington,  Corson,  Day,  Deuel,  Edmunds,  Grant,  Hamlin,  Mc- 
Plierson,  Marshall,  Roberts,  Schnasse,  Spink,  and  Walworth,  and  in  the 
Sisseton  and  Wahpeton  Indian  reservation,  and  in  that  portion  of  the  Stand- 
ing Rock  Indian  reservation  lying  in  South  Dakota,  shall  constitute  the 
northern  division ;  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Armstrong,  Buffalo,  Dewey,  Faulk,  Hand,  Hughes,  Hyde,  Jerauld, 
Lyman,  Potter,  Stanley,  and  Sully,  and  in  the  Cheyenne  River,  Lower  Brule, 
and  Crow  Creek  Indian  reservations,  shall  constitute  the  central  division; 
and  the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Bennett,  Butte,  Custer,  Fall  River,  Harding,  Lawrence,  Meade,  Mellette,  Pen- 
nington,  Perkins,  Shannon,  Todd,  Tripp,  Washabaugh,  and  Washington,  and 
in  the  Rosebud  and  Pine  Ridge  Indian  reservations,  shall  constitute  the  west- 
ern division.  Terms  of  the  district  court  for  the  southern  division  shall 
be  held  at  Sioux  Falls  on  the  first  Tuesday  in  April  and  the  third  Tuesday 
in  October;  for  the  northern  division,  at  Aberdeen  on  the  first  Tuesday  in 
May  and  the  second  Tuesday  in  November;  for  the  central  division,  at  Pierre 
on  the  second  Tuesday  in  June  and  the  first  Tuesday  in  October;  and  for 
the  western  division,  at  Deadwood  on  the  third  Tuesday  in  May  and  the 
first  Tuesday  in  September.  The  clerk  of  the  district  court  shall  maintain 
an  office  in  charge  of  himself  or  a  deputy  at  Sioux  Falls,  at  Pierre,  at  Aber- 
deen, and  at  Deadwood,  which  shall  be  kept  open  for  the  transaction  of  the 
business  of  the  court. 

Annotated,  our  §  139  note  j. 


JUDICIAL    CODE  701 

§  107.  The  state  of  Tennessee  is  divided  into  three  districts,  to  be  known 
as  the  eastern,  middle,  and  western  districts  of  Tennessee.  The  eastern  dis- 
trict shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Bledsoe,  Bradley,  Hamilton,  James, 
McMinn,  Marion,  Meigs,  Polk,  Rhea,  and  Sequatchie,  which  shall  constitute 
"the  southern  division  of  said  district;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Anderson,  Blount,  Campbell,  Claiborne, 
Grainger,  Jefferson,  Knox,  Loudon,  Monroe,  Morgan,  Roane,  Sevier,  Scott, 
and  Union,  which  shall  constitute  the  northern  division  of  said  district;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Carter, 
Cocke,  Greene,  Hamblen,  Hancock,  Hawkins,  Johnson,  Sullivan,  Unicoi,  and 
Washington,  which  shall  constitute  the  northeastern  division  of  said  district. 
Terms  of  the  district  court  for  the  southern  division  of  said  district  shall 
be  held  at  Chattanooga  on  the  fourth  Mondays  in  May  and  November;  for 
the  northern  division  at  Knoxville  on  the  first  Mondays  in  January  and  July; 
and  for  the  northeastern  division,  at  Greeneville  on  the  last  Mondays  in 
March  and  September.  The  middle  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Bedford,  Cannon,  Cheatham,  Coffee,  Davidson,  Dickson,  Franklin,  Giles,  Grun 
dy,  Hickman,  Humphreys,  Houston,  Lawrence,  Lewis,  Lincoln,  Marshall,  Mau- 
ry,  Montgomery,  Moore,  Robertson,  Rutherford,  Stewart,  Sumner,  Trousdale, 
Warren,  Wayne,  Williamson,  and  Wilson,  which  shall  constitute  the  Nashville 
division  of  said  district;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Clay,  Cumberland,  DeKalb,  Fentress,  Jackson,  Macon, 
Overton,  Pickett,  Putnam,  Smith,  Van  Buren,  and  White,  which  shall  consti- 
tute the  northeastern  division  of  said  district.  Terms  of  the  district  court  for 
the  Nashville  division  of  said  district  shall  be  held  at  Nashville  on  the  second 
Mondays  in  April  and  October;  and  for  the  northeastern  division,  at  Cooke- 
ville  on  the  second  Mondays  in  May  and  November:  Provided,  That  suitable 
accommodations  for  holding  court  at  Cookeville  shall  be  provided  by  the 
county  or  municipal  authorities  without  expense  to  the  United  States.  The 
western  district  shall  include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten,  in  the  counties  of  Dyer,  Fayette,  Haywood,  Laucler- 
dale,  Shelby,  and  Tipton,  which  shall  constitute  the  western  division  of  said 
district;  also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Benton,  Carroll,  Chester,  Crockett,  Decatur,  Gibson,  Hardeman, 
Hardin,  Henderson,  Henry,  Lake,  McNairy,  Madison,  Obion,  Perry,  and  Weak- 
ley,  including  the  waters  of  the  Tennessee  River  to  low-water  mark  on  the 
eastern  shore  thereof  wherever  such  rivei  forms  the  boundary  line  between  the 
western  and  middle  districts  of  Tennessee,  from  the  north  line  of  the  state 
•of  Alabama  north  to  the  point  in  Henry  County,  Tennessee,  where  the 
south  boundary  line  of  the  state  of  Kentucky  strikes  the  west  bank  of  the 
river,  which  shall  constitute  the  eastern  division  of  said  district.  Terms  of 
the  district  court  for  the  western  division  of  said  district  shall  be  held 
at  Memphis  on  the  fourth  Mondays  in  May  and  November;  and  for  the 
eastern  division,  at  Jackson  on  the  fourth  Mondays  in  April  and  October. 
The  clerk  of  the  court  for  the  western  district  shall  appoint  a  deputy  who 
shall  reside  at  Jackson.  The  marshal  for  the  western  district  shall  appoint 
&  deputy  who  shall  reside  at  Jackson.  The  marshal  for  the  eastern  district 


702  APPENDIX 

shall  appoint  a  deputy  who  shall  reside  at  Chattanooga.  The  clerk  of  the 
court  for  the  eastern  district  shall  maintain  an  office  in  charge  of  himself 
or  a  deputy  at  Knoxville,  at  Chattanooga,  and  at  Greeneville,  which  shall  be 
kept  open  at  all  times  for  the  transaction  of  the  business  of  the  court. 
Annotated,  our  §  140  note  k,  as  amended  Aug.  20,  1912,  ch.  306. 

See  our  §  140. 

§  108.  The  state  of  Texas  is  divided  into  four  districts,  to  be  known  as 
the  northern,  eastern,  western,  and  southern  districts  of  Texas.  The  northern 
district  shall  include  the  territory  embraced  on  the  first  day  of  July,  nine- 
teen hundred  and  ten,  in  the  counties  of  Dallas,  Ellis,  Hunt,  Johnson,  Kauf- 
man, Xavarro,  and  Rockwall,  which  shall  constitute  the  Dallas  division; 
also  the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Archer,  Baylor,  Clay,  Comanche,  Erath,  Foard,  Hardeman,  Hood,  Jack,  Palo 
Pinto,  Parker,  Tarrant,  Wichita,  Wilbarger,  Wise,  and  Young,  which  shall 
constitute  the  Fort  WTorth  division;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Armstrong,  Bailey,  Briscoe,  Carson,  Castro, 
Childress,  Cochran,  Collingsworth,  Cottle,  Crosby,  Dallam,  Deaf  Smith,  Dick- 
ens, Donley,  Floyd,  Gray,  Hale,  Hall,  Hansford,  Hartley,  Hemphill,  Hockley, 
Hutchinson,  King,  Lamb,  Lipscomb,  Lubbock,  Moore,  Motley,  Ochiltree,  Old- 
ham,  Farmer,  Potter,  Randall,  Roberts,  Sherman,  S wisher,  and  Wheeler,  which 
shall  constitute  the  Amarillo  division;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Andrews,  Borden,  Callahan,  Dawson, 
Eastland,  Fisher,  Gaines,  Garza,  Haskell,  Howard,  Jones,  Kent,  Knox,  Lynn, 
Martin,  Midland,  Mitchell,  Nolan,  Scurry,  Shackelford,  Stephens,  Stonewall, 
Taylor,  Terry,  Throckmorton,  and  Yoakum,  which  shall  constitute  the  Abilene 
division;  also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Brown,  Coke,  Coleman,  Concho,  Crockett,  Glasscock,  Irion,  Menard, 
Mills,  Runnels,  Schleicher,  Sterling,  Sutton,  Tom  Green,  and  Upton,  which  shall 
constitute  the  San  Angelo  division  of  the  said  district.  Terms  of  the  district 
court  for  the  Dallas  division  shall  be  held  at  Dallas  on  the  second  Monday 
in  January  and  the  first  Monday  in  May;  for  the  Fort  Worth  division,  at 
Fort  Worth  on  the  first  Monday  in  November  and  the  second  Monday  in 
March;  for  the  Amarillo  division,  at  Amarillo  on  the  third  Monday  in  April 
and  the  fourth  Monday  in  September;  for  the  Abilene  division  at  Abilene  on 
the  first  Monday  in  October  and  the  second  Monday  in  April;  and  for  the  San 
Angelo  division,  at  San  Angelo  on  the  third  Monday  in  October  and  the 
fourth  Monday  in  April.  The  clerk  of  the  court  for  the  northern  district 
shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at  Dallas,  at  Fort 
Worth,  at  Amarillo,  at  Abilene,  and  at  San  Angelo,  which  shall  be  kept 
open  at  all  times  for  the  transaction  of  the  business  of  the  court.  The  east- 
ern district  shall  include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten,  in  the  counties  of  Anderson,  Angelina,  Cherokee, 
Gregg,  Henderson,  Houston,  Nacogdoches,  Panola,  Rains,  Rusk,  Smith,  Van 
Zandt,  and  Wood,  which  shall  constitute  the  Tyler  division;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Hardin,  Jasper,  Jeffer- 
son, Liberty,  Newton,  Orange,  Sabine,  San  Augustine,  Shelby,  and  Tyler, 
which  shall  constitute  the  Beaumont  division;  also  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Collin,  Cook,  Denton,  Grayson,  and 
Montague,  which  shall  constitute  the  Sherman  division;  also  the  territory 


JUDICIAL    CODE  Y03 

embraced  on  the  date  last  mentioned  in  the  counties  of  Camp,  Cass,  Har- 
rison, Hopkins,  Marion,  Morris,  and  Upshur,  which  shall  constitute  the 
Jefferson  division;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Delta,  Fannin,  Red  River,  and  Lamar,  which  shall  con- 
stitute the  Paris  division;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Bowie,  Franklin,  and  Titus,  which  shall  constitute 
the  Texarkana  division.  Terms  of  the  district  court  for  the  Tyler  division 
shall  be  held  at  Tyler  on  the  fourth  Mondays  in  January  and  April;  for 
the  Jefferson  division,  at  Jefferson  on  the  first  Monday  in  October  and  the 
third  Monday  in  February;  for  the  Beaumont  division,  at  Beaumont  on  the 
third  Monday  in  November  and  the  first  Monday  in  April;  for  the  Sherman 
division,  at  Sherman  on  the  first  Monday  in  January  and  the  third  Monday 
in  May;  for  the  Paris  division,  at  Paris  on  the  third  Monday  in  October 
and  the  first  Monday  in  March;  and  for  the  Texarkana  division  at  Texarkana 
on  the  third  Monday  in  March  and  the  first  Monday  in  November.  The  clerk 
of  the  court  for  the  eastern  district  shall  maintain  an  office  in  charge  of 
himself  or  a  deputy  at  Sherman,  at  Beaumont,  and  at  Texarkana,  which 
shall  be  kept  open  at  all  times  for  the  transaction  of  the  business  of  said 
court.  The  western  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Bastrop,  Blanco, 
Burleson,  Burnet,  Caldwell,  Gillespie,  Hays,  Kimble,  Lampasas,  Lee,  Llano, 
Mason,  McCulloch,  San  Saba,  Travis,  Washington,  and  Williamson,  which 
shall  constitute  the  Austin  division;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Atascosa,  Bandera,  Bexar,  Comal,  Dim- 
mit,  Edwards,  Frio,  Gonzales,  Guadalupe,  Karnes,  Kendall,  Kerr,  Medina, 
and  Wilson,  which  shall  constitute  the  San  Antonio  division;  also  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties  of  Brewster, 
Crane,  Ector,  El  Paso,  Jeff  Davis,  Loving,  Reeves,  Presidio,  Ward,  and  Wink- 
k-r,  which  shall  constitute  the  El  Paso  division;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Bell,  Bosque,  Coryell,  Falls, 
Hamilton,  Freestone,  Hill,  Leon,  Limestone,  McLennan,  Milam,  Robertson,  and 
Somervell,  which  shall  constitute  the  Waco  division;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Kinney,  Maverick,  Pecos, 
Terrell,  Uvalde,  Valverde,  and  Zavalla,  which  shall  constitute  the  Del  Rio 
division.  Terms  of  the  district  court  for  the  Austin  division  shall  be  held 
at  Austin  on  the  fourth  Monday  in  January  and  the  second  Monday  in  June; 
for  the  Waso  division,  at  Waso  on  the  fourth  Monday  in  February  and  the 
second  Monday  in  November;  for  the  San  Antonio  division,  at  San  Antonio 
on  the  first  Monday  in  May  and  the  third  Monday  in  December;  for  the 
El  Paso  division,  at  El  Paso  on  the  first  Monday  in  April  and  the  first  Monday 
in  October;  and  for  the  Del  Rio  division,  at  Del  Rio  on  the  third  Monday  in 
March  and  the  fourth  Monday  in  October.  The  clerk  of  the  court  for  the  west- 
ern district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at  Austin, 
at  El  Paso,  and  at  Del  Rio,  which  shall  be  kept  open  at  all  times  for  the 
transaction  of  business.  The  southern  district  shall  include  the  territory 
embraced  on  the  first  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Duval,  La  Salle,  McMullen,  Nueces,  Webb,  and  Zapata,  which  shall  con- 
stitute the  Laredo  division ;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Cameron,  Hidalgo,  and  Starr,  which  shall  con- 


704  APPENDIX 

stitute  the  Brownsville  division;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Austin,  Brazoria,  Chambers,  Galveston,  Fort 
,  Bend,  Matagorda,  and  Wharton,  which  shall  constitute  the  Galveston  divi- 
sion; also  the  territory  embraced  on  the  date  last  mentioned,  in  the  counties 
of  Brazos,  Colorado,  Fayette,  Grimes,  Harris,  Lavaca,  Madison,  Montgomery, 
Polk,  San  Jacinto,  Trinity,  Walker,  and  Waller,  which  shall  constitute  the 
Houston  division;  also  the  territory  embraced  on  the  date  last  mentioned, 
in  the  counties  of  Bee,  Calhoun,  Dewitt,  Goliad,  Jackson,  Live  Oak,  Refugio, 
Aransas,  San  Patricio,  and  Victoria,  which  shall  constitute  the  Victoria 
division.  Terms  of  the  district  court  for  the  Galveston  division  shall  be 
held  at  Galveston  on  the  second  Monday  in  January  and  the  first  Monday  in 
June;  for  the  Houston  division,  at  Houston  on  the  fourth  Mondays  in  Febru- 
ary and  September;  for  the  Laredo  division,  at  Laredo  on  the  third  Monday 
in  April  and  the  second  Monday  in  November;  for  the  Brownsville  division, 
at  Brownsville  on  the  second  Monday  in  May  and  the  first  Monday  in  De- 
cember; and  for  the  Victoria  division,  at  Victoria  on  the  first  Monday  in 
May  and  the  fourth  Monday  in  November.  The  clerk  of  the  court  for  the 
southern  district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy 
at  each  of  the  places  now  designated  for  holding  court  in  said  district. 

Annotated,  our  §  141  note  1,  as  amended  May  29,  1912,  ch.   144, 
and  Feb.  5,  1913,  ch.  28.     See  our  §  141. 

§  109.  The  state  of  Utah  shall  constitute  one  judicial  district,  to  be  known 
as  the  district  of  Utah.  It  is  divided  into  two  divisions,  to  be  known  as 
the  northern  and  central  divisions.  The  northern  division  shall  include  the 
territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Boxelder,  Cache,  Davis,  Morgan,  Rich,  and  Weber.  The 
central  division  shall  include  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Beaver,  Carbon,  Emery,  Garfield,  Grand,  Iron,  Juab, 
Kane,  Millard,  Piute,  Salt  Lake,  San  Juan,  San  Pete,  Sevier,  Summit,  Tooele, 
Uinta,  Utah,  Wasatch,  Washington,  and  Wayne.  Terms  of  the  district 
court  for  the  northern  division  shall  be  held  at  Ogden  on  the  second  Mondays 
in  March  and  September;  and  for  the  central  division,  at  Salt  Lake  City 
on  the  second  Mondays  in  April  and  November.  The  clerk  of  the  court  for 
said  district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at 
each  of  the  places  where  the  court  is  now  required  to  be  held  in  the  district. 
Annotated,  our  §  142  note  m. 

§  110.  The  state  of  Vermont  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Vermont.  Terms  of  the  district  court  shall  be 
held  at  Burlington  on  the  fourth  Tuesday  in  February;  at  Windsor  on  the 
third  Tuesday  in  May;  and  at  Rutland  on  the  first  Tuesday  in  October.  In 
each  year  one  of  the  stated  terms  of  the  district  court  may,  when  adjourned, 
be  adjourned  to  meet  at  Montpelier,  and  one  at  Newport. 

Annotated,  our  §  143  note  n,  as  amended,  Act  Feb.  1,  1912,  ch.  26. 
See  our  §  143. 

§  111.  The  state  of  Virginia  is  divided  into  two  districts,  to  be  known 
as  the  eastern  and  western  districts  of  Virginia.  The  eastern  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Accomac,  Alexandria,  Amelia,  Brunswick,  Caroline, 
Charles  City,  Chesterfield,  Culpepper,  Dinwiddie,  Elizabeth  City,  Essex,  Fair- 


JUDICIAL    CODE  705 

fax,  Fauquier,  Gloucester,  Goochland,  Greensville,  Hanover,  Henrico,  Isle  of 
Wight,  James  City,  King  and  Queen,  King  George,  King  William,  Lancaster, 
Loudoun,  Louisa,  Lunenburg,  Mathews,  Mecklenburg,  Middlesex,  Nansemond, 
New  Kent,  Norfolk,  Northampton,  Northumberland,  Nottoway,  Orange,  Pow 
liatan,  Prince  Edward,  Prince  George,  Prince  William,  Princess  Anne,  Rich- 
mond, Southampton,  Spottsylvania,  Stafford,  Surry,  Sussex,  Warwick.  West- 
moreland, and  York.  Terms  of  the  district  court  shall  be  held  at  Richmond 
on  the  first  Mondays  in  April  and  October;  at  Norfolk  on  the  first  Mondays 
in  May  and  November;  and  at  Alexandria  on  the  first  Mondays  in  January 
and  July.  The  western  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Alleghany, 
Albermarle,  Amherst,  Appomattox,  Augusta,  Bath,  Bedford,  Bland,  Bote 
tourt,  Buchanan,  Buckingham,  Campbell,  Carroll,  Charlotte,  Clarke,  Craig, 
Cumberland,  Dickenson,  Floyd,  Fluvanna,  Franklin,  Frederick,  Giles,  Gray- 
son,  Greene,  Halifax,  Henry,  Highland,  Lee,  Madison,  Montgomery,  Nelson, 
Page,  Patrick,  Pulaski,  Pittsylvania,  Rappahannock,  Roanoke,  Rockbridge, 
Rockingham,  Russell,  Scott,  Shenandoah,  Smyth,  Tazewell,  Warren,  Wash- 
ington, Wise,  and  Wythe.  Terms  of  the  district  court  shall  be  held  at 
Lynchburg  on  the  Tuesdays  after  the  second  Mondays  in  March  and  Sep- 
tember; at  Danville  on  the  Tuesdays  after  the  second  Mondays  in  April 
and  November;  at  Abingdon  on  the  Tuesdays  after  the  first  Mondays  in 
May  and  October;  at  Harrisonburg  on  the  Tuesdays  after  the  first  Mondays 
in  June  and  December;  at  Charlottesville  on  the  second  Monday  in  January 
and  the  first  Monday  in  July;  at  Roanoke  on  the  third  Monday  in  February 
and  the  third  Monday  in  June;  and  at  Big  Stone  Gap  on  the  fourth  Monday 
in  January  and  the  second  Monday  in  August.  The  clerk  of  the  court  for 
the  western  district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy 
at  Lynchburg,  at  Danville,  at  Charlottesville,  at  Roanoke,  Abingdon,  and  at 
Hig  Stone  Gap,  which  shall  be  kept  open  at  all  times  for  the  transaction 
of  the  business  of  the  court. 

Annotated,  our  §  144  note  o. 

§  112.  The  state  of  Washington  is  divided  into  two  districts,  to  be  known 
as  the  eastern  and  western  districts  of  Washington.  The  eastern  district 
shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hun- 
dred and  ten,  in  the  counties  of  Spokane,  Stevens-,  Ferry,  Okanogan,  Chelan, 
Grant,  Douglas,  Lincoln,  and  Adams,  with  the  waters  thereof,  including  all 
Indian  reservations  within  said  counties,  which  shall  constitute  the  northern 
division;  also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Asotin,  Garfield,  Whitman,  Columbia,  Franklin,  Walla  Walla, 
Benton,  Klickitat,  Kittitas,  and  Yakima.  with  the  waters  thereof,  including 
all  Indian  reservations  within  said  counties,  which  shall  constitute  the  south- 
ern division  of  said  district.  Terms  of  the  district  court  for  the  northern 
division  shall  be  held  at  Spokane  on  the  first  Tuesdays  in  April  and  Sep- 
tember; for  the  southern  division,  at  Walla  Walla  on  the  first  Tuesdays 
in  June  and  December,  and  at  North  Yakima  on  the  first  Tuesdays  in  May 
and  October.  The  western  district  shall  include  the  territory  embraced  on 
the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Whatcom, 
Skagit,  Snohomish,  King,  San  Juan.  Island,  Kitsap,  Clallam,  and  Jefferson, 
with  the  waters  thereof,  including  all  Indian  reservations  within  said  counties, 
Montg  — 45. 


706  APPENDIX 

which  shall  constitute  the  northern  division;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Pierce,  Mason,  Thurston,  Che- 
lialis,  Pacific,  Lewis,  Wahkiakum,  Cowlitz,  Clarke,  and  Skamania,  with  the 
waters  thereof,  including  all  Indian  reservations  within  said  counties,  which 
shall  oonstitute  the  southern  division  of  said  district.  Terms  of  the  district 
court  for  the  northern  division  shall  be  held  at  Bellingham  on  the  first 
Tuesdays  in  April  and  October;  at  Seattle  on  the  first  Tuesdays  in  May  and 
November;  and  for  the  southern  division,  at  Tacoma  on  the  first  Tuesdays  in 
February  and  July.  The  clerks  of  the  courts  for  the  eastern  and  western 
districts  shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at  each 
place  in  their  respective  districts  where  terms  of  court  are  now  required 
to  be  held. 

Annotated,  our  §  145  note  p. 

§  113.  The  state  of  West  Virginia  is  divided  into  two  districts,  to  be 
known  as  the  northern  and  southern  districts  of  West  Virginia.  The 
northern  district  shall  include  the  territory  embraced  on  the  first  day 
of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Hancock,  Brooke, 
Ohio,  Marshall,  Tyler,  Pleasants,  Wood,  Wirt,  Ritchie,  Doddridge,  Wetzel, 
Monongalia,  Marion,  Harrison,  Lewis,  Gilmer,  Calhoun,  Upshur,  Barbour, 
Taylor,  Preston,  Tucker,  Randolph,  Pendleton,  Hardy,  Grant,  Mineral, 
Hampshire,  Morgan,  Berkeley,  and  Jefferson,  with  the  waters  thereof.  Terms 
of  the  district  court  for  the  northern  district  shall  be  held  at  Martins- 
burg,  the  first  Tuesday  of  April  and  the  third  Tuesday  of  September; 
at  Clarksburg,  the  second  Tuesday  of  April  and  the  first  Tuesday  of 
October;  at  Wheeling  the  first  Tuesday  of  May  and  the  third  Tuesday 
of  October;  at  Philippi,  the  fourth  Tuesday  of  May  and  the  first  Tuesday 
of  November;  at  Parkersburg,  the  second  Tuesday  of  January  and  the 
second  Tuesday  of  June:  Provided,  That  a  place  for  holding  court  at 
Philippi  shall  be  furnished  the  government  free  of  cost  by  Barbour  county 
until  other  provision  is  made  therefor  by  law.  The  southern  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Jackson,  Roane,  Clay,  Braxton,  Webster,  Nicholas, 
Pocahontas,  Greenbrier,  Fayette,  Boone,  Kanawha,  Putnam,  Mason,  Cabell, 
Wayne,  Lincoln,  Logan,  Mingo,  Raleigh,  Wyoming,  McDowell,  Mercer, 
Summers,  and  Monroe,  with  the  waters  thereof.  Terms  of  the  district 
court  for  the  southern  district  shall  be  held  at  Charleston  on  the  first  Tuesday 
in  June  and  the  third  Tuesday  in  November;  at  Huntington,  on  the  first 
Tuesday  in  April  and  the  first  Tuesday  after  the  third  Monday  in  September; 
at  Bluefield  on  the  first  Tuesday  in  May  and  the  third  Tuesday  in  October;  at 
Addison  on  the  first  Monday  in  September;  and  at  Lewisburg  on  the  second 
Tuesday  in  February:  Provided,  That  accommodations  for  holding  court  at 
Addison  shall  be  furnished  without  cost  to  the  United  States. 

Annotated,  our   §   146  note  q,  as  amended   Mch.   23,   1912,   ch.   63. 

See  our  §  146. 

§  114.  The  state  of  Wisconsin  is  divided  into  two  districts,  to  be  known 
as  the  eastern  and  western  districts  of  Wisconsin.  The  eastern  district 
shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Brown,  Calumet,  Dodge,  Door,  Flor- 
ence, Fond  du  Lac,  Forest,  Green  Lake,  Kenosha,  Kewaunee,  Langlade, 


JUDICIAL,    CODE  707 

Manitowoc,  Marinette,  Marquette,  Milwaukee,  Oconto,  Outagamic,  Ozaukee, 
Racine,  Shawano,  Sheboygan,  Walworth,  Washington,  Waukcsha,  Wau- 
paca,  Waushara,  and  Winnebago.  Terms  of  the  district  court  for  said 
district  shall  be  held  at  Milwaukee  on  the  first  Mondays  in  January  and 
October;  at  Oshkosh  on  the  second  Tuesday  in  June;  and  at  Green  Bay 
on  the  first  Tuesday  in  April.  The  western  district  shall  include  the  ter- 
ritory embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Adams,  Ashland,  Barren,  Bayfield.  Buffalo,  Burnett,  Chip- 
pewa,  Clark,  Columbia,  Crawford,  Dane,  Dunn,  Douglas,  Eau  Claire,  Grant, 
Green,  Iowa,  Iron,  Jackson,  Jefferson,  Juneau,  La  Crosse,  Lafayette,  Lincoln, 
Marathon,  Monroe,  Oneida,  Pepin,  Pierce,  Polk,  Portage,  Price,  Richland, 
Rock,  Rusk,  .Saint  Croix,  Sauk,  Sawyer,  Taylor,  Trempealeau,  Vernon, 
Vilas,  Washburn,  and  Wood.  Terms  of  the  district  court  for  said  district 
shall  be  held  at  Madison  on  the  first  Tuesday  in  December;  at  Eau  Claire  on 
the  first  Tuesday  in  June;  at  La  Crosse  on  the  third  Tuesday  in  September; 
and  at  Superior  on  the  fourth  Tuesday  in  January  and  the  second  Tuesday 
in  July.  The  district  court  for  each  of  said  districts  shall  be  open  at  all 
times  for  the  purpose  of  hearing  and  deciding  causes  of  admiralty  and 
maritime  jurisdiction,  so  far  as  the  same  can  be  done  without  a  jury. 
The  clerk  of  the  court  for  the  western  district  shall  maintain  an  office 
in  charge  of  himself  or  a  deputy  at  Madison,  at  La  Crosse,  and  at  Superior, 
which  shall  be  kept  open  at  all  times  for  the  transaction  of  the  business 
of  the  court.  The  marshal  for  the  western  district  shall  appoint  a  deputy 
marshal  who  shall  reside  and  keep  his  office  at  Superior.  All  writs  and  other 
process,  except  criminal  warrants,  issued  at  Superior,  may  be  made  re- 
turnable at  Superior;  and  the  clerk  at  that  place  shall  keep  in  his  office 
the  original  records  of  all  actions,  prosecutions,  and  special  proceedings 
so  commenced  and  pending  therein.  Criminal  warrants  may  be  returned 
at  any  place  within  the  district  where  court  is  held.  Whenever  warrants 
issued  at  Superior  shall  be  returned  at  any  other  place,  the  clerk  of  the 
court  wherein  the  warrant  is  returned,  shall  certify  the  same,  under  the 
seal  of  the  court,  together  with  the  plea  and  other  proceedings  had  thereon, 
and  the  determination  of  the  court  upon  such  plea  or  proceedings,  with 
fill  papers  or  orders  filed  in  reference  thereto,  to  the  clerk  of  the  court  at 
Superior;  and  the  clerk  at  Superior  shall  enter  iipon  his  records  a  minute 
of  the  proceedings  had  upon  the  return  of  said  warrant,  certified  as  afore- 
said. All  causes  and  proceedings  instituted  in  the  court  at  Superior,  shall 
be  tried  therein,  unless  by  consent  of  the  parties,  or  upon  the  order  of 
the  court,  they  are  transferred  to  another  place  for  trial. 

Annotated,  our  §  147  note  r. 

§  115.  The  state  of  Wyoming  and  the  Yellowstone  National  Park  shall 
constitute  one  judicial  district,  to  be  known  as  the  district  of  Wyoming. 
Terms  of  the  district  court  for  said  district  shall  be  held  at  Cheyenne  on 
the  Second  Mondays  in  May  and  November;  at  Evanston  on  the  second 
Tuesday  in  July;  and  at  Lander  on  the  first  Monday  in  October;  and  the 
said  court  shall  hold  one  session  annually  at  Sheridan,  and  in  said  national 
]>;nk.  on  such  dates  as  the  court  may  order.  The  marshal  and  clerk  of  the 
said  court  shall  each,  respectively,  appoint  at  least  one  deputy  to  reside 
at  Evanston,  and  one  to  reside  at  Lander,  unless  he  himself  shall  reside 


708 


APPENDIX 


there,  and  shall  also  maintain  an  office  at  each  of  those  places:  Provided, 
That  until  a  public  building  is  provided  at  Lander,  suitable  accommodations 
for  holding  court  in  said  town  shall  be  furnished  the  government  at  an  expense 
not  to  exceed  three  hundred  dollars  annually.  The  marshal  of  the  United 
States  for  the  said  district  may  appoint  one  or  more  deputy  marshals 
for  the  Yellowstone  National  Park,  who  shall  reside  in  said  park. 
Annotated,  our  §  148  notes. 


CHAPTER  SIX. 


CIRCUIT   COURTS    OF    APPEALS. 


Sec. 

116.  Circuits. 

117.  Circuit  courts  of  appeals. 

118.  Circuit    judges. 

119.  Allotment  of  justices  to  the  cir- 

cuits. 

120.  Chief  Justice  and  associate  jus- 

tices of  Supreme  Court,  and 
district  judges,  may  sit  in  cir- 
cuit court  of  appeals. 

121.  Justices,  alloted  to  circuits,  how 

designated. 

122.  Seals,     forms     of     process,     and 

rules. 

123.  Marshals. 

124.  Clerks. 

125.  Deputy  clerks;  appointment  and 

removal. 

126.  Terms. 

127.  Rooms  for  court,  how  provided. 

128.  Jurisdiction;      when      judgment 

final. 


Sec. 

129.  Appeals    in   proceedings    for   in- 

junctions and  receivers. 

130.  Appellate    and    supervisory    ju- 

risdiction under  the  bankrupt 
act. 

131.  Appeals  from  the  United  States 

court  for  China. 

132.  Allowance  of  appeals,  etc. 

133.  Writs     of     error     and     appeals 

from  the  supreme  courts  of 
Arizona  and  New  Mexico. 

134.  Writs     of     error     and     appeals 

from  district  court  for  Alaska 
to  circuit  court  of  appeals  for 
ninth  circuit;  court  may  cer- 
tify question  to  the  Supreme 
Court. 

135.  Appeals  and  writs  of  error  from 

Alaska;   where  heard. 


§  116.  There  shall  be  nine  judicial  circuits  of  the  United  States,  con- 
stituted as  follows: 

First.  The  first  circuit  shall  include  the  districts  of  Rhode  Island,  Massa- 
chusetts, New  Hampshire,  and  Maine. 

Second.  The  second  circuit  shall  include  the  districts  of  Vermont,  Con- 
necticut, and  New  York. 

Third.  The  third  circuit  shall  include  the  districts  of  Pennsylvania,  New 
Jersey,  and  Delaware. 

Fourth.  The  fourth  circuit  shall  include  the  districts  of  Maryland,  Vir- 
ginia, West  Virginia,  North  Carolina,  and  South  Carolina. 

Fifth.  The  fifth  circuit  shall  include  the  districts  of  Georgia,  Florida, 
Alabama,  Mississippi,  Louisiana,  and  Texas. 

Sixth.  The  sixth  circuit  shall  include  the  districts  of  Ohio,  Michigan, 
Kentucky,  and  Tennessee. 

Seventh.  The  seventh  circuit  shall  include  the  districts  of  Indiana,  Illinois, 
and  Wisconsin. 

Eighth.    The  eighth   circuit   shall   include  the   districts  of  Nebraska,  Min- 


JUDICIAL    CODE  709 

nesota,  Iowa,  Missouri,  Kansas,  Arkansas,  Colorado,  Wyoming,  North  Dakota, 
South   Dakota,  Utah  and  Oklahoma. 

Ninth.    The  ninth  circuit  shall  include  the  districts  of  California,  Oregon, 
Nevada,  Washington,  Idaho,  Montana,  and  Hawaii. 
Annotated,  our  §  2400  note  a. 

§  117.  There  shall  be  in  each  circuit  a  circuit  court  of  appeals,  which 
shall  consist  of  three  judges,  of  whom  two  shall  constitute  a  quorum,  and 
which  shall  be  a  court  of  record,  with  appellate  jurisdiction  as  hereinafter 
limited  and  established. 

Annotated,  our  §  2401  note  b. 

§  118.  There  shall  be  in  the  second,  seventh,  and  eighth  circuits,  re- 
spectively, four  circuit  judges,  in  the  fourth  circuit,  two  circuit  judges, 
and  in  each  of  the  other  circuits,  three  circuit  judges,  to  be  appointed  by 
the  President,  by  and  with  the  advice  and  consent  of  the  Senate.  They 
shall  be  entitled  to  receive  a  salary  at  the  rate  of  seven  thousand  dollars 
a  year,  each,  payable  monthly.  Each  circuit  judge  shall  reside  within  his 
circuit. 

Annotated,  our  §  2401  note  c,  as  amended  January   13,  1912,  ch. 
9.     See  our  §  2401. 

§  11 0.  The  Chief  Justice  and  associate  justices  of  the  Supreme  Court 
shall  be  allotted  among  the  circuits  by  an  order  of  the  court,  and  a  new 
allotment  shall  be  made  whenever  it  becomes  necessary  or  convenient  by 
reason  of  the  alteration  of  any  circuit,  or  of  the  new  appointment  of  a 
Chief  Justice  or  associate  justice,  or  otherwise.  If  a  new  allotment  be- 
comes necessary  at  any  other  time  than  during  a  term,  it  shall  be  made 
by  the  Chief  Justice,  and  shall  be  binding  until  the  next  term  and  until 
a  new  allotment  by  the  court.  Whenever,  by  reason  of  death  or  resig- 
nation, no  justice  is  allotted  to  a  circuit,  the  Chief  Justice  may,  until  a 
justice  is  regularly  allotted  thereto,  temporarily  assign  a  justice  of  another 
circuit  to  such  circuit. 

Annotated,  our  2402  note  e. 

§  120.  The  Chief  Justice  and  the  associate  justices  of  the  Supreme  Court 
assigned  to  each  circuit,  and  the  several  district  judges  within  each  cir- 
cuit, shall  be  competent  to  sit  as  judges  of  the  circuit  court  of  appeals 
within  their  respective  circuits.  In  case  the  Chief  Justice  or  an  associate 
justice  of  the  Supreme  Court  shall  attend  at  any  session  of  the  circuit 
court  of  appeals,  he  shall  preside.  In  the  absence  of  such  Chief  Justice, 
or  associate  justice,  the  circuit  judges  in  attendance  upon  the  court  shall 
preside  in  the  order  of  the  seniority  of  their  respective  commissions.  In 
case  the  full,  court  at  any  time  shall  not  be  made  up  by  the  attendance 
of  the  Chief  Justice  or  the  associate  justice,  and  the  circuit  judges,  one 
or  more  district  judges  within  the  circuit  shall  sit  in  the  court  accord- 
ing to  such  order  or  provision  among  the  district  judges  as  either  by  general 
or  particular  assignment  shall  be  designated  by  the  court:  Provided, 
That  no  judge  before  whom  a  cause  or  question  may  have  been 
tried  or  heard  in  a  district  court,  or  existing  circuit  court,  shall  sit  on 
the  trial  or  hearing  of  such  cause  or  question  in  the  circuit  court  of  ap- 
peals. 

Annotated,  our  §  2403  note  f. 


710  APPENDIX 

§   121.  The  words  "circuit  justice"  and  "justice  of  a  circuit,"  when  used 
in   this   title,   shall   be   understood   to  designate   the   justice  of  the   Supreme! 
Court  who  is  allotted  to  any  circuit;   but  the  word  "judge,"  when  applied 
generally  to  any  circuit,  shall  be  understood  to  include  such  justice. 
Annotated,  our  §  2401  note  d. 

§  122.  Kach  of  said  circuit  courts  of  appeals  shall  prescribe  the  form 
and  style  of  its  seal,  and  the  form  of  writs  and  other  process  and  pro- 
cedure as  may  be  conformable  to  the  exercise  of  its  jurisdiction :  and  shall 
have  power  to  establish  all  rules  and  regulations  for  the  conduct  of  the 
business  of  the  court  within  its  jurisdiction  as  conferred  by  law. 
Annotated,  our  §  2407  note  k. 

§  123.  The  United  States  marshals  in  and  for  the  several  districts  of 
said  courts1  shall  be  the  marshals  of  said  circuit  courts  of  appeals,  and 
shall  exercise  the  same  powers  and  perform  the  same  duties,  under  the 
regulations  of  the  court,  as  are  exercised  and  performed  by  the  marshal 
of  the  Supreme  Court  of  the  United  States,  so  far  as  the  same  may  be  ap- 
plicable. 

Annotated,  our  §   2405  note  i. 

§  124.  Each    court    shall    appoint    a    clerk,    who    shall    exercise    the    same 
powers   and   perform   the   same   duties   in    regard   to   all   matters   within    its 
jurisdiction,   as   are   exercised   and   performed   by   the   clerk   of   the   Supreme 
Court,  so  far  as  the  same  may  be  applicable. 
Annotated,  our  §  2404  note  g. 

§  125.  The  clerk  of  the  circuit  court  of  appeals  for  each  circuit  may, 
with  the  approval  of  the  court,  appoint  such  number  of  deputy  clerks  as  the 
court  may  deem  necessary.  Such  deputies  may  be  removed  at  the  pleasure 
of  the  clerk  appointing  them,  with  the  approval  of  the  court.  In  case 
of  the  death  of  the  clerk  his  deputy  or  deputies  shall,  unless  removed  by 
the  court,  continue  in  office  and  perform  the  duties  of  the  clerk  in  his 
name  until  a  clerk  is  appointed  and  has  qualified;  and  for  the  defaults 
or  misfeasances  in  office  of  any  such  deputy,  whether  in  the  lifetime  of 
the  clerk  or  after  his  death,  the  clerk  and  his  estate  and  the  sureties  on 
his  official  bond  shall  be  liable,  and  his  executor  or  administrator  shall 
have  such  remedy  for  such  defaults  or  misfeasances  committed  after  his 
death  as  the  clerk  would  be  entitled  to  if  the  same  had  occurred  in  his 
lifetime. 

Annotated,  our  §  2404  note  h. 

§  126.  A  term  shall  be  held  annually  by  the  circuit  courts  of  appeals 
in  the  several  judicial  circuits  at  the  following  places,  and  at  such  times 
as  may  be  fixed  by  said  courts,  respectively:  In  the  first  circuit,  in 
Boston;  in  the  second  circuit,  in  New  York;  in  the  third  circuit,  in  Phila- 
delphia; in  the  fourth  circuit,  in  Richmond;  in  the  fifth  circuit,  in  New 
Orleans,  Atlanta,  Fort  Worth,  and  Montgomery;  in  the  sixth  circuit,  in 
Cincinnati ;  in  the  seventh  circuit,  in  Chicago;  in  the  eighth  circuit,  in 
Saint  Louis,  Denver,  or  Cheyenne,  and  Saint  Paul:  in  the  ninth  circuit, 
in  San  Francisco,  and  each  year  in  two  other  places  in  said  circuit  to 
be  designated  by  the  judges  of  said  court;  and  in  each  of  the  above  circuits, 
terms  may  be  held  at  such  other  times  and  in  such  other  places  as  said 
courts,  respectively,  may  from  time  to  time  designate:  Provided,  That 


JUDICIAL    CODE  711 

terms  shall  be  held  in  Atlanta  on  the  first  Monday  in  October,  in  Fort  Worth 
on  the  first  Monday  in  November,  in  Montgomery  on  the  third  Monday  in 
October,  in  Denver  or  in  Cheyenne  on  the  first  Monday  in  September,  and 
in  Saint  Paul  on  the  first  -Monday  in  May.  All  appeals,  writs  of  error,  and 
other  appellate  proceedings  which  may  be  taken  or  prosecuted  from  the 
district  courts  of  the  United  States  in  the  state  of  Georgia,  in  the  state 
of  Texas,  and  in  the  state  of  Alabama,  to  the  circuit  court  of  appeals 
for  the  fifth  judicial  circuit  shall  be  heard  and  disposed  of,  respectively, 
by  said  court  at  the  terms  held  in  Atlanta,  in  Fort  Worth,  and  in  Mont 
gomery,  except  that  appeals  or  writs  of  error  in  cases  of  injunctions  and 
in  all  other  cases  which,  under  the  statutes  and  rules,  or  in  the  opinion 
of  the  court,  are  entitled  to  be  brought  to  a  speedy  hearing  may  be  heard 
and  disposed  of  wherever  said  court  may  be  sitting.  All  appeals,  writs 
of  errors,  and  other  appellate  proceedings  which  may  hereafter  be  taken 
or  prosecuted  from  the  district  court  of  the  United  States  at  Beaumont, 
Texas,  to  the  circuit  court  of  appeals  for  the  fifth  circuit,  shall  be  heard 
and  disposed  of  by  the  said  circuit  court  of  appeals  at  the  terms  of  court 
held  at  New  Orleans:  Provided,  That  nothing  herein  shall  prevent  the 
court  from  hearing  appeals  or  writs  of  error  wherever  the  said  court  shall 
sit,  in  cases  of  injunctions  and  in  all  other  cases  which,  under  the  stat- 
utes and  the  rules,  or  in  the  opinion  of  the  court,  are  entitled  to  be  brought 
to  a  speedy  hearing.  All  appeals,  writs  of  error,  and  other  appellate  pro- 
ceedings which  may  be  taken  or  prosecuted  from  the  district  courts  of  the 
United  States  in  the  states  of  Colorado,  Utah,  and  Wyoming,  and  the  supreme 
court  of  the  Territory  of  New  Mexico  to  the  circuit  court  of  appeals  for  the 
eighth  judicial  circuit,  shall  be  heard  and  disposed  of  by  said  court  at  the 
terms  held  either  in  Denver  or  in  Cheyenne,  except  that  any  case  arising 
in  any  of  said  states  or  territory  may,  by  consent  of  all  the  parties,  be 
heard  and  disposed  of  at  a  term  of  said  court  other  than  the  one  held  in 
Denver  or  Cheyenne. 

Annotated,  our  §  2406  note  j. 

§  127.  The  marshals  for  the  several  districts  in  which  said  circuit  courts 
of  appeals  may  be  held  shall,  under  the  direction  of  the  Attorney  Gen- 
eral, and  with  his  approval,  provide  such  rooms  in  the  public  buildings 
of  the  United  States  as  may  be  necessary  for  the  business  of  said  courts, 
and  pay  all  incidental  expenses  of  said  court,  including  criers,  bailiffs,  and 
messengers:  Provided,  That  in  case  proper  rooms  can  not  be  provided 
in  such  buildings,  then  the  marshals,  with  the  approval  of  the  Attorney 
General,  may,  from  time  to  time,  lease  such  rooms  as  may  be  necessary  for 
such  courts. 

36  Stat.  at  L.  1133,  Comp.  St.  1911,  p.  193,  1912  Supp.  F.  S.  A.  v.  1,  p. 
194.  Re-enacting  part  of  26  Stat.  at  L.  829,  Foster's  Fed.  Prac.  pp.  79,  1156, 
1451,  1661.  1607,  1955,  2017,  2063,  2132,  2133,  Comp.  St.  1901,  p.  552,  4  F.  S. 
A.  427.  In  general,  In  re  Lyman,  55  Fed.  29. 

§  128.  The  circuit  courts  of  appeals  shall  exercise  appellate  jurisdic- 
tion to  review  by  appeal  or  writ  of  error  final  decisions  in  the  district 
courts,  including  the  United  States  district  court  for  Hawaii,  in  all  cases 
other  than  those  in  which  appeals  and  writs  of  error  may  be  taken  direct 


712  APPENDIX 

to  the  Supreme  Court,  as  provided  in  section  two  hundred  and  thirty- 
eight,  unless  otherwise  provided  by  law;  and,  except  as  provided  in  sec- 
tions two  hundred  and  thirty-nine  and  two  hundred  and  forty,  the  judg- 
ments and  decrees  of  the  circuit  courts  of  appeals  shall  be  final  in  all  cases 
in  which  the  jurisdiction  is  dependent  entirely  upon  the  opposite  parties 
to  the  suit  or  controversy  being  aliens  and  citizens  of  the  United  States, 
or  citizens  of  different  states;  also  in  all  cases  arising  under  the  patent 
laws,  under  the  copyright  laws,  under  the  revenue  laws,  and  under  the 
criminal  laws,  and  in  admiralty  cases. 
Annotated,  our  §  2031  note  a. 

§  129.  Where  upon  a  hearing  in  equity  in  a  district  court,  or  by  a  judge 
thereof  in  vacation,  an  injunction  shall  be  granted,  continued,  refused, 
or  dissolved  by  an  interlocutory  order  or  decree,  or  an  application 
to  dissolve  an  injunction  shall  be  refused,  or  an  interlocutory  order  or 
decree  shall  be  made  appointing  a  receiver,  an  appeal  may  be  taken  from 
such  interlocutory  order  or  decree  granting,  continuing,  refusing,  dissolv- 
ing, or  refusing  to  dissolve,  an  injunction,  or  appointing  a  receiver,  to  the 
circuit  court  of  appeals,  notwithstanding  an  appeal  in  such  case  might, 
upon  final  decree  under  the  statutes  regulating  the  same,  be  taken  directly 
to  the  Supreme  Court:  Provided,  That  the  appeal  must  be  taken  within 
thirty  days  from  the  entry  of  such  order  or  decree,  and  it  shall  take  prec- 
edence in  the  appellate  court;  and  the  proceedings  in  other  respects  in 
the  court  below  shall  not  be  stayed  unless  otherwise  ordered  by  that  court, 
or  the  appellate  court,  or  a  judge  thereof,  during  the  pendency  of  such 
appeal:  Provided,  however,  That  the  court  below  may,  in  its  discretion, 
require  as  a  condition  of  the  appeal  an  additional  bond. 

Annotated,  our  §  2032  note  b.     Referred  to  in  our  §  2054. 

§  130.  The  circuit  courts  of  appeals  shall  have  the  appellate  and  super- 
visory jurisdiction  conferred  upon  them  by  the  act  entitled  "An  Act  to 
Establish  a  Uniform  System  of  Bankruptcy  throughout  the  United  States," 
approved  July  first,  eighteen  hundred  and  ninety-eight,  and  all  laws  amenda- 
tory thereof,  and  shall  exercise  the  same  in  the  manner  therein  prescribed. 
Annotated,  our  §  2033  note  c. 

§  13L  The  circuit  court  of  appeals  for  the  ninth  circuit  is  empowered 
to  hear  and  determine  writs  of  error  and  appeals  from  the  United  States 
court  for  China,  as  provided  in  the  act  entitled  "An  Act  Creating  a  United 
States  Court  for  China  and  Prescribing  the  Jurisdiction  thereof,"  ap- 
proved June  thirtieth,  nineteen  hundred  and  six. 
Annotated,  our  §  2034  note  d. 

§  132.  Any  judge  of  a  circuit  court  of  appeals,  in  respect  of  cases  brought 
or  to  be  brought  before  that  court,  shall  have  the  same  powers  and  duties 
as  to  allowances  of  appeals  and  writs  of  error,  and  the  conditions  of  such 
allowances,  as  by  law  belong  to  the  justices  or  judges  in  respect  of  other 
courts  of  the  United  States,  respectively. 
Annotated,  our  §  2037  note  g. 

§  133.  The  circuit  courts  of  appeals,  in  cases  in  which  their  judgments 
and  decrees  are  made  final  by  this  title,  shall  have  appellate  jurisdiction, 
by  writ  of  error  or  appeal,  to  review  the  judgments,  orders,  and  decrees 
of  the  supreme  courts  of  Arizona  and  New  Mexico,  as  by  this  title  they 


JUDICIAL    CODE  71  '6 

may  have  to  review  the  judgments,  orders,  and  decrees  of  the  district 
courts;  and  for  that  purpose  said  territories  shall,  by  orders  of  the  Su- 
preme Court  of  the  United  States,  to  be  made  from  time  to  time,  be  assigned 
to  particular  circuits. 

-36  Stat.  at  L.  1134,  Comp.  St.  1911,  p.  195,  1912  Supp.  F.  S.  A.  v.  1,  p. 
196.  Re-enacting  §  15,  C.  C.  A.  act  of  1891,  Comp.  St.  1901,  p.  554,  4  F.  S.  A. 
431.  In  general,  Int.  Com.  Com.  v.  Humboldt  Steamship  Co.  224  U.  S.  474, 
56  L.  ed.  849,  32  Sup.  Ct.  Rep.  556. 

§  134.  In  all  cases  other  than  those  in  which  a  writ  of  error  or  appeal 
will  lie  direct  to  the  Supreme  Court  of  the  United  States  as  provided  in 
section  two  hundred  and  forty-seven,  in  which  the  amount  involved  or  the 
value  of  the  subject-matter  in  controversy  shall  exceed  five  hundred  dollars, 
and  in  all  criminal  cases,  writs  of  error  and  appeals  shall  lie  from  the 
district  court  for  Alaska  or  from  any  division  thereof,  to  the  circuit  court 
of  appeals  for  the  ninth  circuit,  and  the  judgments,  orders,  and  decres 
of  said  court  shall  be  final  in  all  such  cases.  But  whenever  such  circuit 
court  of  appeals  may  desire  the  instruction  of  the  Supreme  Court  of  the 
United  States  upon  any  question  or  proposition  of  law  which  shall  have 
arisen  in  any  such  case,  the  court  may  certify  such  question  or  proposition 
to  the  Supreme  Court,  and  thereupon  the  Supreme  Court  shall  give  its 
instruction  upon  the  question  or  proposition  certified  to  it,  and  its  in- 
structions shall  be  binding  upon  the  circuit  court  of  appeals. 

Annotated,  our  §  842  note  b.    Referred  to  in  our  §§  2035,  2082. 

§  135.  All  appeals,  and  writs  of  error,  and  other  cases,  coming  from 
the  district  court  for  the  district  of  Alaska  to  the  circuit  court  of  appeals 
for  the  ninth  circuit,  shall  be  entered  upon  the  docket  and  heard  at  San 
Francisco,  California,  or  at  Portland,  Oregon,  or  at  Seattle,  Washington, 
;is  the  trial  court  before  whom  the  case  was  tried  below  shall  fix  and 
determine:  Provided,  That  at  any  time  before  the  hearing  of  any  appeal, 
writ  of  error,  or  other  case,  the  parties  thereto,  through  their  re- 
spective attorneys,  may  stipulate  at  which  of  the  above-named  places  the 
same  shall  be  heard,  in  which  case  the  case  shall  be  remitted  to  and 
entered  upon  the  docket  at  the  place  so  stipulated  and  shall  be  heard 
there. 

Annotated,  our  §  2036  note  b. 


714 


APPENDIX 


CHAPTER  SEVEN. 


THE  COURT  OF   CLAIMS. 


Sec. 

136.  Appointment,   oath,    and    salary 

of  judges. 

137.  Seal. 

138.  Session;   quorum. 

139.  Officers  of  the  court. 

140.  Salaries   of   officers. 

141.  Clerk's  bond. 

142.  Contingent   fund. 

143.  Reports  to  Congress;   copies  for 

departments,  etc. 

144.  Members     of     Congress    not    to 

practice    in    the    court.  • 

145.  Jurisdiction. 

Par.  1.  Claims      against      the 
United  States. 

2.  Set-offs. 

3.  Disbursing  officers. 

146.  Judgments   for   set-off   or   coun- 

ter-claims;  how  enforced. 

147.  Decree   on   accounts   of   disburs- 

ing officers. 

148.  Claims  referred  by  departments. 

149.  Procedure   in    cases   transmitted 

by  departments. 

150.  Judgments     in    cases     transmit- 

ted     by      departments;      how 
paid. 

Either   House   of   Congress   may 
refer   certain   claims   to  court. 

Costs    may    be    allowed    prevail- 
ing party. 

Claims  growing  out  of   treaties 

not  cognizable  therein. 
154.  Claims  pending  in  other  courts. 
355.  Aliens. 

156.  All  claims  to  be  filed  within  six- 

years;   exceptions. 

157.  Rules   of   practice;    may   punish 

contempts. 

158.  Oaths    and    acknowledgments. 

159.  Petitions   and   verification. 

160.  Petition   dismissed,   when. 

161.  Burden    of    proof    and    evidence 

as  to  loyalty. 

162.  Claims      for  "  proceeds      arising 

from  sales  of  abandoned  prop- 
erty. 

§  136.  The  court  of  claims,  established  by  the  act  of  February  twenty- 
fourth,  eighteen  hundred  and  fifty-five,  shall  be  continued.  It  shall  con- 
sist of  a  chief  justice  and  four  judges,  who  shall  be  appointed  by  the 
President,  by  and  with  the  advice  and  consent  of  the  Senate,  and  hold 


Sec. 

163.  Commissioners     to     take     testi- 

mony. 

164.  Power  to  call  upon  departments 

for  information. 

165.  When  testimony  not  to  be  tak- 

en. 

166.  Examination   of   claimant. 

167.  Testimony ;  where  taken. 

168.  Witnesses      before     commission- 

ers. 

169.  Cross-examinations. 

170.  Witnesses;   how  sworn. 

171.  Fees,      of      commissioners,      by 

whom    paid. 

172.  Claims   forfeited   for   fraud. 

173.  Claims    under    act    of    June    16, 

1874. 

174.  New   trial   on   motion   of   claim- 

ant. 

175.  New  trial '  on  motion   of  United 

States. 

176.  Cost   of    printing   record. 

177.  No   interest  on  claims. 

178.  Effect  of  payment  of  judgment. 

179.  Final   judgments   a   bar. 

180.  Debtors    to    the    United    States 

may  have  amount  due  ascer- 
tained. 

181.  Appeals. 

182.  Appeals  in  Indian  cases. 

183.  Attorney     General's     report     to 

Congress. 

184.  Loyalty  a  jurisdictional  fact  in 

certain  cases. 

185.  Attorney  General  to  appear  for 

the  defense. 

186.  Persons    not   to   be   excluded   as 

witnesses  on  account  of  color 
or  because  of  interest;  plain- 
tiff may  be  witness  for  govern- 
ment. 

187.  Reports  of  court  to  Congress. 


JUDICIAL    CODE  715 

their  offices  during  good  behavior.  Each  of  them  shall  take  an  oath  to 
support  the  Constitution  of  the  United  States,  and  to  discharge  faith- 
fully the  duties  of  his  office.  The  chief  justice  shall  be  entitled  to  re- 
ceive an  annual  salary  of  six  thousand  five  hundred  dollars,  and  each  of 
the  other  judges  an  annual  salary  of  six  thousand  dollars,  payable  monthly, 
from  the  Treasury. 

Annotated,  our  §  2300  note  a. 

§  137.  The  court  of  claims  shall  have  a  seal,  with  such  device  as  it  may 
order. 

Annotated,  our  §  2300  note  b. 

§  138.  The  court  of  claims  shall  hold  one  annual  session  at  the  city 
of  Washington,  beginning  on  the  first  Monday  in  December  and  continuing 
as  long  as  may  be  necessary  for  the  prompt  disposition  of  the  business 
of  the  court.  Any  three  of  the  judges  of  said  court  shall  constitute 
a  quorum,  and  may  hold  a  court  for  the  transaction  of  business:  Pro- 
vided, That  the  concurrence  of  three  judges  shall  be  necessary  to  the  decision 
of  any  case. 

Annotated,  our  §  2304  note  f. 

§  139.  The  said  court  shall  appoint  a  chief  clerk,  an  assistant  clerk, 
if  deemed  necessary,  a  bailiff,  and  a  chief  messenger.  The  clerks  shall 
take  an  oath  for  the  faithful  discharge  of  their  duties,  and  shall  be  under 
the  direction  of  the  court  in  the  performance  thereof;  and  for  miscon- 
duct or  incapacity  they  may  be  removed  by  it  from  office;  but  the  court 
shall  report  such  removals,  with  the  cause  thereof,  to  Congress,  if 
in  session,  or  if  not,  at  the  next  session.  The  bailiff  shall  hold  his 
office  for  a  term  of  four  years,  unless  sooner  removed  by  the  court  for 
cause. 

Annotated,  our  §  2301  note  c. 

§  140.  The  salary  of  the  chief  clerk  shall  be  three  thousand  five  hundred 
dollars  a  year;  of  the  assistant  clerk  two  thousand  five  hundred  dollars 
a  year;  of  the  bailiff  one  thousand  five  hundred  dollars  a  year,  and  of 
the  chief  messenger  one  thousand  dollars  a  year,  payable  monthly  from  the 
Treasury. 

36  Stat.  at  L.  1136,  Comp.  St.  1911,  p.  197,  1912  Supp.  F.  S.  A.  v.  1,  p. 
199.  He-enacting  §  1054,  R.  S.  U.  S.,  Rose's  Code,  §§  578,  685,  Foster's  Fed. 
Prac.  p.  1683,  Comp.  St.  1901,  p.  730,  2  F.  S.  A.  54,  and  appropriation  acts 
under  it,  which  section  is  repealed  by  §  297,  Judicial  Code. 

§  141.  The  chief  clerk  shall  give  bond  to  the  United  States  in  such  amount, 
in  such  form,  and  with  such  security  as  shall  be  approved  by  the  Secretary 
of  the  Treasury. 

36  Stat.  at  L.  1136,  Comp.  St.  1911,  p.  197,  1912  Supp.  F.  S.  A.  v.  I,  p. 
199.  Re-enacting  §  1055  R.  S.  U.  S..  Rose's  Code,  §  594  (see  Ref.  §  140, 
supra),  Comp.  St.  1901,  p.  731,  2  F.  S.  A.  54,  which  is  repealed  by  §  297, 
Judicial  Code. 

§  142.  The  said  -  clerk  shall  have  authority  when  he  has  given  bond  as 
provided  in  the  preceding  section,  to  disburse,  under  the  direction  of  the 
court,  the  contingent  fund  which  may  from  time  to  time  be  appropriated 


716  APPENDIX 

for  its  use;  and  his  accounts  shall  be  settled  by  the  proper  accounting 
officers  of  the  Treasury  in  the  same  way  as  the  accounts  of  other  disbursing 
agents  of  the  government  are  settled. 

Annotated,  our  §  2303  note  e. 

§  143.  On  the  first  day  of  every  regular  session  of  Congress,  the  clerk 
of  the  court  of  claims  shall  transmit  to  Congress  a  full  and  complete 
statement  of  all  the  judgments  rendered  by  the  court  during  the  previous 
year,  stating  the  amounts  thereof  and  the  parties  in  whose  favor  they 
were  rendered,  together  with  a  brief  synopsis  of  the  nature  of  the  claims 
upon  which  they  were  rendered.  At  the  end  of  every  term  of  the  court 
he  shall  transmit  a  copy  of  its  decisions  to  the  heads  of  departments; 
to  the  Solicitor,  the  Comptroller,  and  the  Auditors  of  the  Treasury;  to 
the  Commissioner  of  the  General  Land  Office  and  of  Indian  Affairs;  to 
the  chiefs  of  bureaus,  and  to  other  officers  charged  with  the  adjustment  of 
claims  against  the  United  States. 

Annotated,  our  §  2329  note  g. 

§  144.  Whoever,  being  elected  or  appointed  a  Senator,  Member  of,  or 
Delegate  to  Congress,  or  a  Resident  Commissioner,  shall,  after  his  elec- 
tion or  appointment,  and  either  before  or  after  he  has  qualified,  and 
during  his  continuation  in  office,  practice  in  the  court  of  claims,  shall 
be  fined  not  more  than  ten  thousand  dollars  and  imprisoned  not  more 
than  two  years;  and  shall,  moreover,  thereafter  be  incapable  of  holding 
any  office  of  honor,  trust,  or  profit  under  the  government  of  the  United 
States. 

Annotated,  our  §  2302  note  d. 

§  145.  The  court  of  claims  shall  have  jurisdiction  to  hear  and  determine 
the  following  matters: 

First.  All  claims  (except  for  pensions)  founded  upon  the  Constitution 
of  the  United  States  or  any  law  of  Congress,  upon  any  regulation  of  an 
Executive  Department,  upon  any  contract,  express  or  implied,  with  the 
government  of  the  United  States,  or  for  damages,  liquidated  or  unliqui- 
dated, in  cases  not  sounding  in  tort,  in  respect  of  which  claims  the  party 
would  be  entitled  to  redress  against  the  United  States  either  in  a  court 
of  law,  equity,  or  admiralty  if  the  United  States  were  suable:  Provided, 
however,  That  nothing  in  this  section  shall  be  construed  as  giving  to  the 
said  court  jurisdiction  to  hear  and  determine  claims  growing  out  of  the 
late  Civil  War,  and  commonly  known  as  "war  claims,"  or  to  hear  and 
determine  other  claims  which,  prior  to  March  third,  eighteen  hundred  and 
eighty-seven,  had  been  rejected  or  reported  on  adversely  by  any  court, 
department,  or  commission  authorized  to  hear  and  determine  the  same. 

Second.  All  set-offs,  counterclaims,  claims  for  damages,  whether  liqui- 
dated or  unliquidated,  or  other  demands  whatsoever  on  the  part  of  the 
government  of  the  United  States  against  any  claimant  against  the  govern- 
ment in  said  court:  Provided,  That  no  suit  against  the  government  of 
the  United  States,  brought  by  any  officer  of  the  United  States  to  recover 
fees  for  services  alleged  to  have  been  performed  for  the  United  States, 
shall  be  allowed  under  this  chapter  until  an  account  for  said  fees  shall 
have  been  rendered  and  finally  acted  upon  as  required  by  law,  unless  the 


JUDICIAL    CODE  717 

proper  accounting  officer  of  the  Treasury  fails  to  act  finally  thereon  within 
six  months  after  the  account  is  received  in  said  office. 

Third.  The  claim  of  any  paymaster,  quartermaster,  commissary  of  sub- 
sistence, or  other  disbursing  officer  of  the  United  States,  or  of  his  ad- 
ministrators or  executors,  for  relief  from  responsibility  on  account  of  loss 
by,  capture  or  otherwise,  while  in  the  line  of  his  duty,  of  government  funds, 
vouchers,  records,  or  papers  in  his  charge,  and  for  which  such  officer  was 
and  is  held  responsible. 

Annotated,  our  §  2305  note  g. 

§  146.  Upon  the  trial  of  any  cause  in  which  any  set-off,  counterclaim, 
claim  for  damages,  or  other  demand  is  set  up  on  the  part  of  the  govern- 
ment against  any  person  making  claim  against  the  government  in  said 
court,  the  court  shall  hear  and  determine  such  claim  or  demand  both  for 
and  against  the  government  and  claimant;  and  if  upon  the  whole  case  it 
finds  that  the  claimant  is  indebted  to  the  government  it  shall  render  judg- 
ment to  that  effect,  and  such  judgment  shall  be  final,  with  the  right  of 
appeal,  as  in  other  cases  provided  for  by  law.  Any  transcript  of  such 
judgment,  filed  in  the  clerk's  office  of  any  district  court,  shall  be  entered 
upon  the  records  thereof,  and  shall  thereby  become  and  be  a  judgment  of 
such  court  and  be  enforced  as  other  judg/nents  in  such  court  are  enforced. 
Annotated,  our  §  2331  note  u. 

§  147.  Whenever  the  court  of  claims  ascertains  the  facts  of  any  loss 
by  any  paymaster,  quartermaster,  commissary  of  subsistence,  or  other  dis- 
bursing officer,  in  the  cases  hereinbefore  provided,  to  have  been  without 
fault  or  negligence  on  the  part  of  such  officer,  it  shall  make  a  decree  set- 
ting forth  the  amount  thereof,  and  upon  such  decree  the  proper  account- 
ing officers  of  the  Treasury  shall  allow  to  such  officer  the  amount  so  decreed 
as  a  credit  in  the  settlement  of  his  accounts. 
Annotated,  our  §  2326  note  j. 

§  148.  When  any  claim  or  matter  is  pending  in  any  of  the  executive 
departments  which  involves  controverted  questions  of  fact  or  law,  the 
head  of  such  department  may  transmit  the  same,  with  the  vouchers,  papers, 
documents,  and  proofs  pertaining  thereto,  to  the  court  of  claims  and  the 
same  shall  be  there  proceeded  in  under  such  rules  as  the  court  may  adopt. 
When  the  facts  and  conclusions  of  law  shall  have  been  found,  the  court 
shall  report  its  findings  to  the  department  by  which  it  was  transmitted 
for  its  guidance  and  action:  Provided,  however,  That  if  it  shall  have 
been  transmitted  with  the  consent  of  the  claimant,  or  if  it  shall  appear 
to  the  satisfaction  of  the  court  upon  the  facts  established,  that  under 
existing  laws  or  the  provisions  of  this  chapter  it  has  jurisdiction  to  render 
judgment  or  decree  thereon,  it  shall  proceed  to  do  so,  in  the  latter  case 
giving  to  either  party  such  further  opportunity  for  hearing  as  in  its  judg- 
ment justice  shall  require,  and  shall  report  its  findings  therein  to  the 
department  by  which  the  same  was  referred  to  said  court.  The  Secretary 
of  the  Treasury  may,  upon  the  certificate  of  any  auditor,  or  of  the  Comptroller 
of  the  Treasury,  direct  any  claim  or  matter,  of  which,  by  reason  of  the 
subject  matter  or  character,  the  said  court  might  under  existing  laws,  take 
jurisdiction  on  the  voluntary  action  of  the  claimant,  to  be  transmitted, 


718  APPENDIX 

with  all  the  vouchers,  papers,  documents  and  proofs  pertaining  thereto,  to  the 
said  court  for  trial  and  adjudication. 

Annotated,  our  §  2309  note  1. 

§  149.  All  cases  transmitted  by  the  head  of  any  department,  or  upon 
the  certificate  of  any  auditor,  or  of  the  Comptroller  of  the  Treasury, 
according  to  the  provisions  of  the  preceding  section,  shall  be  proceeded 
in  as  other  cases  pending  in  the  court  of  claims,  and  shall,  in  all  re- 
spects, be  subject  to  the  same  rules  and  regulations. 

Annotated,  our  §  2309  note  m. 

§  150.  The  amount  of  any  final  judgment  or  decree  rendered  in  favor 
of  the  claimant,  in  any  case  transmitted  to  the  court  of  claims  under 
the  two  preceding  sections,  shall  be  paid  out  of  any  specific  appropria- 
tion applicable  to  the  case,  if  any  such  there  be;  and  where  no  such  ap- 
propriation exists,  the  judgment  or  decree  shall  be  paid  in  the  same  manner 
as  other  judgments  of  the  said  court. 

Annotated,  our  §  2330  note  s. 

§  151.  Whenever  any  bill,  except  for  a  pension,  is  pending  in  either 
House  of  Congress  providing  for  the  payment  of  a  claim  against  the 
United  States,  legal  or  equitable,  or  for  a  grant,  gift,  or  bounty  to  any 
person,  the  House  in  which  such  bill  is  pending  may,  for  the  investiga- 
tion and  determination  of  facts,  refer  the  same  to  the  court  of  claims, 
which  shall  proceed  with  the  same  in  accordance  with  such  rules  as  it 
may  adopt  and  report  to  such  House  the  facts  in  the  case  and  the  amount, 
where  the  same  can  be  liquidated,  including  any  facts  bearing  upon  the 
question  whether  there  has  been  delay  or  laches  in  presenting  such  claim 
or  applying  for  such  grant,  gift,  or  bounty,  and  any  facts  bearing  upon 
the  question  whether  the  bar  of  any  statute  of  limitations  should  be 
removed  or  which  shall  be  claimed  to  excuse  the  claimant  for  not  having 
resorted  to  any  established  legal  remedy,  together  with  such  conclusions 
as  shall  be  sufficient  to  inform  Congress  of  the  nature  and  character  of 
the  demand,  either  as  a  claim,  legal  or  equitable,  or  as  a  gratuity  against 
the  United  States,  and  the  amount,  if  any,  legally  or  equitably  due  from 
the  United  States  to  the  claimant:  Provided,  however,  That  if  it  shall 
appear  to  the  satisfaction  of  the  court  upon  the  facts  established,  that 
under  existing  laws  or  the  provisions  of  this  chapter,  the  subject  matter  of 
the  bill  is  such  that  it  has  jurisdiction  to  render  judgment  or  decree 
thereon,  it  shall  proceed  to  do  so,  giving  to  either  party  such  further 
opportunity  for  hearing  as  in  its  judgment  justice  shall  require,  and  it 
shall  report  its  proceedings  therein  to  the  House  of  Congress  by  which 
the  same  was  referred  to  said  court. 

Annotated,  our  §  2310  note  n. 

§  152.  If  the  government  of  the  United  States  shall  put  in  issue  the 
right  of  the  plaintiff  to  recover,  the  court  may,  in  its  discretion,  allow 
costs  to  the  prevailing  -party  from  the  time  of  joining  such  issue.  Such 
costs,  however,  shall  include  only  what  is  actually  incurred  for  witnesses, 
and  for  summoning  the  same,  and  fees  paid  to  the  clerk  of  the  court. 

Annotated,   our   §   2327   note   m. 

§  153.  The  jurisdiction  of  the  said  court  shall  not  extend  to  any  claim 
against  the  government  not  pending  therein  on  December  first,  eighteen 


JUDICIAL    CODE  710 

hundred  and  sixty-two,  growing  out  of  or  dependent  on  any  treaty 
stipulation  entered  into  with  foreign  nations  or  with  the  Indian 
tribes. 

Annotated,  our  §  2306  note  h. 

§  154.  No  person  shall  file  or  prosecute  in  the  court  of  claims,  or  in 
t\ie  Supreme  Court  on  appeal  therefrom,  any  claim  for  or  in  respect  to 
which  he  or  any  assignee  of  his  has  pending  in  any  other  court  any  suit 
or  process  against  any  person  who,  at  the  time  when  the  cause  of  action 
alleged  in  such  suit  or  process  arose,  was,  in  respect  thereto,  acting  or 
professing  to  act,  mediately  or  immediately,  under  the  authority  of  the 
United  States. 

Annotated,  our  §  2306  note  i. 

§  155.  Aliens  who  are  citizens  or  subjects  of  any  government  which 
accords  to  citizens  of  the  United  States  the  right  to  prosecute  claims 
against  such  government  in  its  courts,  shall  have  the  privilege  of  prose- 
cuting claims  against  the  United  States  in  the  court  of  claims,  whereof 
such  court,  by  reason  of  their  subject  matter  and  character,  might  take 
jurisdiction. 

Annotated,  our  §  2307  note  j. 

§  156.  Every  claim  against  the  United  States  cognizable  by  the  court 
of  claims  shall  be  forever  barred  unless  the  petition  setting  forth  a  state- 
ment thereof  is  filed  in  the  court,  or  transmitted  to  it  by  the  Secretary  of 
the  Senate  or  the  Clerk  of  the  House  of  Representatives,  as  provided  by 
law,  within  six  years  after  the  claim  first  accrues :  Provided,  That  the 
claims  of  married  women,  first  accrued  during  marriage,  of  persons  under 
the  age  of  twenty-one  years,  first  accrued  during  minority,  and  of  idiots, 
lunatics,  insane  persons,  and  persons  beyond  the  seas  at  the  time  the  claim 
accrued,  entitled  to  the  claim,  shall  not  be  barred  if  the  petition  be  filed 
in  tiie  court  or  transmitted,  as  aforesaid,  within  three  years  after  the 
disability  has  ceased;  but  no  other  disability  than  those  enumerated  shall 
prevent  any  claim  from  being  barred,  nor  shall  any  of  the  said  disabilities 
operate  cumulatively. 

Annotated,  our  §  403  note  a.     Referred  to  in  our  §  2314. 

§  157.  The  said  court  shall  have  power  to  establish  rules  for  its  govern- 
ment and  for  the  regulation  of  practice  therein,  and  it  may  punish  for 
contempt  in  the  manner  prescribed  by  tiie  common  law,  may  appoint  com- 
missioners, and  may  exercise  such  powers  as  are  necessary  to  carry  into 
effect  the  powers  granted  to  it  by  law. 
Annotated,  our  §  2315  note  q. 

§  158.  The  judges  and  clerks  of  said  court  may  administer  oaths  and 
affirmations,  taking  acknowledgments  of  instruments  in  writing,  and  give 
certificates  of  the  same. 

Annotated,  our  §  2316  note  s. 

§  159.  The  claimant  shall  in  all  cases  fully  set  forth  in  his  petition 
the  claim,  the  action  thereon  in  Congress  or  by  any  of  the  departments, 
if  such  action  has  been  had,  what  persons  are  owners  thereof  or  inter- 
ested therein,  when  and  Upon  what  consideration  such  persons  became  so 
interested ;  that  no  assignment  or  transfer  of  said  claim  or  of  any  part 
thereof  or  interest  therein  has  been  made,  except  as  stated  in  the  petition , 


Tl'O  APPENDIX 

that  said  claimant  is  justly  entitled  to  the  amount  therein  claimed  from 
the  United  States  after  allowing  all  just  credits  and  off-sets;  that  the 
claimant  and,  where  the  claim  has  been  assigned,  the  original  and  every 
prior  owner  thereof,  if  a  citizen,  has  at  all  times  borne  true  allegiance 
to  the  government  of  the  United  States,  and,  whether  a  citizen  or  not,  has  not 
in  any  way  voluntarily  aided,  abetted,  or  given  encouragement  to  rebellion 
against  the  said  government,  and  that  he  believes  the  facts  as  stated  in  the 
said  petition  to  be  true.  The  said  petition  shall  be  verified  by  the  affidavit 
of  the  claimant,  his  agent  or  attorney. 

Annotated,  our  §  2316  note  r. 

§  160.  The   said   allegations   as   to   true   allegiance   and   voluntary   aiding, 
abetting,  or  giving  encouragement  to  rebellion  against  the  government  may 
be   traversed   by   the  government,   and    if   on   the   trial   such   issues   shall   be 
decided  against  the  claimant,  his  petition  shall  be  dismissed. 
Annotated,  our  §  2319  note  xx. 

§  161.  Whenever  it  is  material  in  any  claim  to  ascertain  whether  any 
person  did  or  did  not  give  any  aid  or  comfort  to  forces  or  government 
of  the  late  Confederate  States  during  the  Civil  War,  the  claimant  as- 
serting the  loyalty  of  any  such  person  to  the  United  States  during  such 
Civil  War  shall  be  required  to  prove  affirmatively  that  such  person  did, 
during  said  Civil  War,  consistently  adhere  to  the  United  States  and  did 
give  no  aid  or  comfort  to  persons  engaged  in  said  Confederate  service  in  said 
Civil  War. 

Annotated,  our  §  2320  note  y. 

§  162.  The  court  of  claims  shall  have  jurisdiction  to  hear  and  deter- 
mine the  claims  of  those  whose  property  was  taken  subsequent  to  June 
the  first,  eighteen  hundred  and  sixty-five,  under  the  provisions  of  the  act 
of  Congress  approved  March  twelfth,  eighteen  hundred  and  sixty-three, 
entitled  "An  Act  to  Provide  for  the  Collection  of  Abandoned  Property  and 
for  the  Prevention  of  Frauds  in  Insurrectionary  Districts  within  the  United 
States,"  and  acts  amendatory  thereof,  where  the  property  so  taken  was 
sold  and  the  net  proceeds  thereof  was  placed  in  the  Treasury  of  the  United 
States;  and  the  Secretary  of  the  Treasury  shall  return  said  net  proceeds 
to  the  owners  thereof,  on  the  judgment  of  said  court,  and  full  jurisdiction  is 
uiven  to  said  court  to  adjudge  said  claims,  any  statutes  of  limitations  to 
the  contrary  notwithstanding. 

Annotated,  our  §  2308  note  k. 

§  163.  The  court  of  claims  shall  have  power  to  appoint  comvjiis- 
sioners  to  take  testimony  to  be  used  in  the  investigation  of  claims  which 
come  before  it,  to  prescribe  the  fees  which  they  shall  receive  for 
their  services,  and  to  issue  commissions  for  the  taking  of  such  testi- 
mony, whether  taken  at  the  instance  of  the  claimant  or  of  the  United 
States. 

Annotated,  our  §  2321  note  z. 

§  164.  The  said  court  shall  have  power  to  call  upon  any  of  the  de- 
partments for  any  information  or  papers  it  may  deem  necessary,  and  shall 
have  the  use  of  all  recorded  and  printed  records  made  by  the  committees 
of  each  House  of  Congress,  when  deemed  necessary  in  the  prosecution  of  its 
business.  But  the  head  of  any  department  may  refuse  and  omit  to  comply 


JUDICIAL    CODE  721 

with  any  call  for   Information  or  papers  when,   in  his  opinion,   such  com- 
pliance would  be   injurious  to  the  public  interest. 
Annotated,  our  §  2323  note  e. 

§  165.  When  it  appears  to  the  court  in  any  case  that  the  facts  set  forth 
in   the   petition   of   the   claimant   do   not   furnish    any   ground   for   relief,    it 
shall  not  authorize  the  taking  of  any  testimony  therein. 
Annotated,  our  §  2318  note  x. 

§  166.  The  court  may,  at  the  instance  of  the  attorney  or  solicitor  ap- 
pearing in  behalf  of  the  United  States,  make  an  order  in  any  case  pending 
therein,  directing  any  claimant  in  such  case  to  appear,  upon  reasonable 
notice,  before  any  commissioner  of  the  court  and  be  examined  on  oath 
touching  any  or  all  matters  pertaining  to  said  claim.  Such  examina- 
tion shall  be  reduced  to  writing  by  the  said  commissioner,  and  be  returned  to 
and  filed  in  the  court,  and  may,  at  the  discretion  of  the  attorney  or  solicitor 
of  the  United  Spates  appearing  in  the  case,  be  read  and  used  as  evidence  on 
the  trial  thereof.  And  if  any  claimant,  after  such  order  is  made  and  due 
and  reasonable  notice  thereof  is  given  to  him,  fails  to  appear,  or  refuses 
to  testify  or  answer  fully  as  to  all  matters  within  his  knowledge  material 
to  the  issue,  the  court  may,  in  its  discretion,  order  that  the  said  cause  shall 
not  be  brought  forward  for  trial  until  he  shall  have  fully  complied  with  the 
order  of  the  court  in  the  premises. 

Annotated,  our  §  2322  note  d. 

§  167.  The  testimony  in  cases  pending  before  the  court  of  claims  shall 
be  taken  in  the  county  where  the  witness  resides,  when  the  same  can  be 
conveniently  done. 

Annotated,  our  §  2321  note  a. 

§  168.  The  court  of  claims  may  issue  subpoenas  to  require  the  attend- 
ance of  witnesses  in  order  to  be  examined  before  any  person  commis- 
sioned to  take  testimony  therein.  Such  subpoenas  shall  have  the  same  force 
as  if  issued  from  a  district  court,  and  compliance  therewith  shall  be  com- 
pelled under  such  rules  and  orders  as  the  court  shall  establish. 
Annotated,  our  §  2321  note  b. 

§  169.  In  taking  testimony  to  be  used  in  support  of  any  claim,  oppor- 
tunity shall  be  given  to  the  United  States  to  file  interrogatories,  or  by 
attorney  to  examine  witnesses,  under  such  regulations  as  said  court  shall 
prescribe;  and  like  opportunity  shall  be  afforded  the  claimant,  in  cases 
where  testimony  is  taken  on  behalf  of  the  United  States,  under  like  regu- 
lations. 

Annotated,  our  §  2324  note  g. 

§  170.  The  commissioner  taking  testimony  to  be  used  in  the  court  of 
claims  shall  administer  an  oath  or  affirmation  to  the  witness  brought  be- 
fore him  for  examination. 

Annotated,  our  §  2321  note  c. 

§  171.  When   testimony   is   taken   for   the   claimant,   the   fees   of  the   com- 
missioner  before   whom    it    is   taken,    and    the   cost    of   the   commission   and 
notice,  shall  be  paid  by  such  claimant;  and  when  it  is  taken  at  the  instance 
of    the   government,    such    fees    shall    be    paid    out    of    the    contingent    fund 
Montg.-  -46. 


722  APPENDIX 

provided  for  the  court  of  claims,  or  other  appropriation  made  by  Congress 
for  that  purpose. 

Annotated,  our  §  2327  note  1. 

§  172.  Any  person  who  corruptly  practices  or  attempts  to  practice  any 
fraud  against  the  United  States  in  the  proof,  statement,  establishment, 
or  allowance  of  any  claim  or  of  any  part  of  any  claim  against  the  United 
States  shall,  ipso  facto,  forfeit  the  same  to  the  government;  and  it  shall 
be  the  duty  of  the  court  of  claims,  in  such  cases,  to  find  specifically  that 
such  fraud  was  practiced  or  attempted  to  be  practiced,  and  thereupon  to 
give  judgment  that  such  claim  is  forfeited  to  the  government,  and  that  the 
claimant  be  forever  barred  from  prosecuting  the  same. 

Annotated,  our  §  2012  note  f.     Referred  to  in  our  §  2317. 

§  173.  No  claim  shall  be  allowed  by  the  accounting  officers  under  the 
provisions  of  the  act  of  Congress  approved  June  sixteen,  eighteen  hundred 
and  seventy-four,  or  by  the  court  of  claims,  or  by  Congress,  to  any  person 
where  such  claimant,  or  those  under  whom  lie  claims,  shall  wilfully,  know- 
ingly, and  with  intent  to  defraud  the  United  States,  have  claimed  more 
than  was  justly  due  in  respect  of  such  claim,  or  presented  any  false  evidence 
to  Congress,  or  to  any  department  or  court,  in  support  thereof. 
Annotated,  our  §  2317  note  v. 

§  174.  When  judgment  is  rendered  against  any  claimant,  the  court  may 
grant  a  new  trial  for  any  reason  which,  by  the  rules  of  common  law  or 
chancery  in  suits  between  individuals,  would  furnish  sufficient  ground  for 
granting  a  new  trial. 

Annotated,  our  §  2325  note  h. 

§  175.  The  court  of  claims,  at  any  time  while  any  claim  is  pending  be- 
fore it,  or  on  appeal  from  it,  or  within  two  years  next  after  the  final 
disposition  of  such  claim,  may,  on  motion,  on  behalf  of  the  United  State*. 
grant  a  new  trial  and  stay  the  payment  of  any  judgment  therein,  upon 
such  evidence,  cumulative  or  otherwise,  as  shall  satisfy  the  court  that  any 
fraud,  wrong,  or  injustice  in  the  premises  has  been  done  to  the  United 
States;  but  until  an  order  is  made  staying  the  payment  of  a  judgment, 
the  same  shall  be  payable  and  paid  as  now  provided  by  law. 
Annotated,  our  §  2325  note  i. 

§  176.  There  shall  be  taxed  against  the  losing  party  in  each  and  every 
cause  pending  in  the  court  of  claims  the  cost  of  printing  the  record  in  such 
case,  which  shall  be  collected,  except  when  the  judgment  is  against  the 
United  States,  by  the  clerk  of  said  court  and  paid  into  the  Treasury  of  the 
United  States. 

Annotated,  our  §  2327  note  n. 

§  177.  No   interest  shall  be  allowed  on   any  claim  up  to  the  time  of  the 
rendition  of  judgment  thereon  by  the  court  of  claims,  unless  upon  a  contract 
expressly  stipulating  for  the  payment  of  interest. 
Annotated,  our  §  2326  note  k. 

§  178.  The    payment   of   the   amount   due   by   any   judgment   of  the   court 
of  claims,  and  of  any   interest  thereon  allowed  by  law,  as  provided  by  law, 
shall   be   a   full   discharge   to   the   United    States   of   all   claim   and   demand 
touching  any  of  the  matters  involved  in  the  controversy. 
Annotated,  our  §  2328  note  p. 


JUDICIAL    CODE  723 

§  179.  Any  final  judgment  against  the  claimant  on  any  claim  prosecuted 
as  provided  in  this  chapter  shall  forever  bar  any  further  claim  or  demand 
against  the  United  States  arising  out  of  the  matters  involved  in  the  con- 
troversy. 

Annotated,  our  §  2328  note  o. 

.  §  180.  Whenever  any  person  shall  present  his  petition  to  the  court  of 
claims  alleging  that  he  is  or  has  been  indebted  to  the  United  States  as 
an  officer  or  agent  thereof,  or  by  virtue  of  any  contract  therewith,  or  that 
he  is  the  guarantor,  or  surety,  or  personal  representative  of  any  officer  or 
agent  or  contractor  so  indebted,  or  that  he  or  the  person  for  whom  he  is 
such  surety,  guarantor,  or  personal  representative  has  held  any  office  or 
agency  under  the  United  States,  or  entered  into  any  contract  therewith, 
under  which  it  may  be  or  has  been  claimed  that  an  indebtedness  to  the 
United  States  had  arisen  and  exists,  and  that  he  or  the  person  he  represents 
has  applied  to  the  proper  department  of  the  government  requesting  that 
the  account  of  such  office,  agency,  or  indebtedness  may  be  adjusted  and  settled, 
and  that  three  years  have  elapsed  from  the  date  of  such  application,  and 
said  account  still  remains  unsettled  and  unadjusted,  and  that  no  suit  upon 
the  same  has  been  brought  by  the  United  States,  said  court  shall,  due  notice 
first  being  given  to  the  head  of  said  department  and  to  the  Attorney  Gen- 
eral of  the  United  States,  proceed  to  hear  the  parties  and  to  ascertain  the 
amount,  if  any,  due  the  United  States  on  said  account.  The  Attorney  Gen- 
eral shall  represent  the  United  States  at  the  hearing  of  said  cause.  The 
court  may  postpone  the  same  from  time  to  time  whenever  justice  shall 
require.  The  judgment  of  said  court  or  of  the  Supreme  Court  of  the 
United  States,  to  which  an  appeal  shall  lie,  as  in  other  cases,  as  to  the 
amount  due,  shall  be  binding  and  conclusive  upon  the  parties.  The  pay- 
ment of  such  amount  so  found  due  by  the  court  shall  discharge  such  obli- 
gation. An  action  shall  accrue  to  the  United  States  against  such  principal, 
or  surety,  or  representative  to  recover  -the  amount  so  found  due,  which 
may  be  brought  at  any  time  within  three  years  after  the  final  judgment 
of  said  court;  and  unless  suit  shall  be  brought  within  said  time,  such 
claim  and  the  claim  on  the  original  indebtedness  shall  be  forever  barred. 
The  provisions  of  section  one  hundred  and  sixty-six  shall  apply  to  cases 
under  this  section. 

Annotated,  our  §  2311  note  o. 

§  181.  The  plaintiff  or  the  United  States,  in  any  suit  brought  under 
the  provision  of  the  section  last  preceding,  shall  have  the  same  right  of 
appeal  as  is  conferred  under  sections  two  hundred  and  forty-two  and  two 
hundred  and  forty-three;  and  such  right  shall  be  exercised  only  within 
the  time  and  in  the  manner  therein  prescribed. 
Annotated,  our  §  2332  note  v. 

§  182.  In  any  case  brought  in  the  court  of  claims  under  any  act  of 
Congress  by  which  that  court  is  authorized  to  render  a  judgment  or  decree 
against  the  United  States,  or  against  any  Indian  tribe  or  any  Indiana, 
or  against  any  fund  held  in  trust  by  the  United  States  for  any  Indian 
tribe  or  for  any  Indians,  the  claimant,  or  the  United  States,  or  the  tribe 
of  Indians,  or  other  party  in  interest  shall  have  the  same  right  of  appeal 
as  is  conferred  under  sections  two  hundred  and  forty-two  and  two  hundred 


724  APPENDIX 

and  forty-three;   and  such  right  shall  be  exercised  only  within  the  time  and 
in   the  manner  therein   prescribed. 

Annotated,  our  §  2332  note  w. 

§  183.  The  Attorney  General  shall  report  to  Congress,  at  the  beginning 
of  each  regular  session,  the  suits  under  section  one  hundred  and  eighty, 
in  which  a  final  judgment  or  decree  has  been  rendered,  giving  the  date 
of  each  and  a  statement  of  the  costs  taxed  in  each  case. 

Annotated,  our  §  2329  note  r. 

§  184.  In  any  case  of  a  claim  for  supplies  or  stores  taken  by  or  furnished 
to  any  part  of  the  military  or  naval  forces  of  the  United  States  for  their 
use  during  the  late  Civil  War,  the  petition  shall  aver  that  the  person  who 
furnished  such  supplies  or  stores,  or  from  whom  such  supplies  or  stores 
were  taken,  did  not  give  any  aid  or  comfort  to  said  rebellion,  but  was 
throughout  that  war  loyal  to  the  government  of  the  United  States,  and 
the  fact  of  such  loyalty  shall  be  a  jurisdictional  fact;  and  unless  the  said 
court  shall,  on  a  preliminary  inquiry,  find  that  the  person  who  furnished 
such  supplies  or  stores,  or  from  whom  the  same  were  taken  as  aforesaid, 
was  loyal  to  the  government  of  the  United  States  throughout  said  war, 
the  court  shall  not  have  jurisdiction  of  such  cause,  and  the  same  shall, 
without  further  proceedings,  be  dismissed. 

Annotated,  our  §  2316  note  t. 

§  185.  The  Attorney-General,  or  his  assistants  under  his  direction,  shall 
appear  for  the  defense  and  protection  of  the  interests  of  the  United  States 
in  all  cases  which  may  be  transmitted  to  the  court  of  claims  under  the 
provisions  of  this  chapter,  with  the  same  power  to  interpose  counterclaims, 
offsets,  defenses  for  fraud  practiced  or  attempted  to  be  practiced  by  claim- 
ants, and  other  defenses,  in  like  manner  as  he  is  required  to  defend  the 
United  States  in  said  court. 

Annotated,  our  §  2317  note  u. 

§  186.  No  person  shall  be  excluded  as  a  witness  in  the  court  of  claims 
on  account  of  color,  because  he  or  she  is  a  party  to  or  interested  in  the 
cause  or  proceeding;  and  any  plaintiff  or  party  in  interest  may  be  examined 
as  a  witness  on  the  part  of  the  government. 

Annotated,  our  §  2324  note  f,  as  amended,  Act  February  5,  1912, 

ch.  28.     See  our  §  2324. 

§  187.  Reports  of  the  court  of  claims  to  Congress,  under  sections  one 
hundred  and  forty-eight  and  one  hundred  and  fifty-one,  if  not  finally  acted 
upon  during  the  session  at  which  they  are  reported,  shall  be  continued  from 
session  to  session  and  from  Congress  to  Congress  until  the  dame  shall  be 
finally  acted  upon. 

Annotated,  our  §  2330  note  t. 


JUDICIAL    CODE  7Zi> 

CHAPTER  EIGHT. 

THE   COURT   OF   CUSTOMS    APPEALS. 

Sec.  Sec. 

188.  Court   of   customs   appeals;    ap-       195.  Final     decisions     of     board     of 

pointment  and  salary  of  judg-  general    appraisers    to    be    re- 

es;    quorum;    circuit   and   dis-  viewed  only  by  customs  court. 

trict  judges  may  act  in  place  196.  other  courts   deprived   of   juris- 

,      of  judge  disqualified,  etc.  diction      in      customs      cases ; 

189.  Court    to    be    always    open    for  pending  cases  excepted. 

business;    terms   may   be   held  m    Trangfere  to    CU9toms    court  of 

in  any  circuit;   when  expenses                          ,.                               ,  ,.  e 

of  judges  to  be  paid.                                  PenfdinS   case8'    completion  of 

190.  Marshal  of  the  court;    appoint-  testimony. 

ment,   salary,   and   duties.  198'  Appeals   from   board   of   general 

191.  Clerk    of    the    court;     appoint-  appraisers;         time         within 

ment,   salary,   and   duties.  which  to  be  taken;    record  to 

19-2.  Assistant      clerk,      stenographic  be     transmitted     to     customs 

clerks,  and  reporter;    appoint-  court, 

ment,  salary,  and  duties.  199.  Records    filed   in    customs    court 

193.  Rooms   for   holding  court   to  be  to   be   at    once   placed   on   cal- 

provided;   bailiffs  and  messen-  endar;    calendar    to   be   called 

gers.  every  sixty  days. 

194.  To  be  a  court  of  record;  to  pre- 

scribe form  and  style  of  seal, 
and  establish  rules  and  regu- 
lations; may  affirm,  modify, 
or  reverse  and  remand  case, 
etc. 

§  188.  There  shall  be  a  United  States  court  of  customs  appeals,  which 
shall  consist  of  a  presiding  judge  and  four  associate  judges,  each  of  whom 
shall  be  appointed  by  the  President,  by  and  with  the  advice  and  consent 
of  the  Senate,  and  shall  receive  a  salary  of  seven  thousand  dollars  a  year. 
The  presiding  judge  shall  be  so  designated  in  the  order  of  appointment  and 
in  the  commission  issued  to  him  by  the  President;  and  the  associate  judges 
shall  have  precedence  according  to  the  date  of  their  commissions.  Any 
three  members  of  said  court  shall  constitute  a  quorum,  and  the  concurrence 
of  three  members  shall  be  necessary  to  any  decision  thereof.  In  case  of  a 
vacancy  or  of  the  temporary  inability  or  disqualification,  for  any  reason,  of 
one  or  two  of  the  judges  of  said  court,  the  President  may.  upon  the  request  of 
the  presiding  judge  of  said  court,  designate  any  qualified  United  States 
circuit  or  district  judge  or  judges  to  act  in  his  or  their  place;  and  such 
circuit  or  district  judges  shall  be  duly  qualified  to  so  act. 
Annotated,  our  §  2253  note  b. 

§  189.  The  said  court  of  customs  appeals  shall  always  be  open  for  the 
transaction  of  business,  and  sessions  thereof  may,  in  the  discretion  of 
the  court,  be  held  in  the  several  judicial  circuits,  and  at  such  places  as 
said  court  may  from  time  to  time  designate.  Any  judge  who,  in  pur- 
suance of  the  provisions  of  this  chapter,  shall  attend  a  session  of  said 
court  at  any  place  other  than  the  city  of  Washington,  shall  be  paid,  upon 
his  written  and  itemized  certificate,  bv  the  marshal  of  the  district  in 


7:26  APPENDIX 

which  the  court  shall  be  held,  his  actual  and  necessary  expenses  incurred 
for  travel  and  attendance,  and  the  actual  and  necessary  expenses  of  one 
stenographic  clerk  who  may  accompany  him;  and  such  payments  shall 
be  allowed  the  marshal  in  the  settlement  of  his  accounts  with  the  United 
States. 

Annotated,  our  §  2258  note  g. 

§  190.  Said  court  shall  have  the  services  of  a  marshal,  with  the  same 
duties  and  powers,  under  the  regulations  of  the  court,  as  are  now  pro- 
vided for  the  marshal  of  the  Supreme  Court  of  the  United  States,  so  far 
as  the  same  may  be  applicable.  Said  services  within  the  District  of  Colum- 
bia shall  be  performed  by  a  marshal  to  be  appointed  by  and  to  hold  office 
during  the  pleasure  of  the  court,  who  shall  receive  a  salary  of  three  thousand 
dollars  per  annum.  Said  services  outside  of  the  District  of  Columbia 
shall  be  performed  by  the  United  States  marshals  in  and  for  the  districts 
where  sessions  of  said  court  may  be  held;  and  to  this  end  said  marshals 
shall  be  the  marshals  of  said  court.  The  marshal  of  said  court  for  the 
District  of  Columbia,  is  authorized  to  purchase,  under  the  direction  of  the 
presiding  judge,  such  books,  periodicals,  and  stationery,  as  may  be  neces- 
sary for  the  use  of  said  court;  and  such  expenditures  shall  be  allowed  and 
paid  by  the  Secretary  of  the  Treasury  upon  claim  duly  made  and  approved 
by  said  presiding  judge. 

Annotated,  our  §  2256  note  e. 

§  191.  The  court  shall  appoint  a  clerk,  whose  office  shall  be  in  the  city 
of  Washington,  District  of  Columbia,  and  who  shall  perform  and  exercise 
the  same  duties  and  powers  in  regard  to  all  matters  within  the  jurisdic- 
tion of  said  court  as  are  now  exercised  and  performed  by  the  clerk  of 
the  Supreme  Court  of  the  United  States,  so  far  as  the  same  may  be  ap- 
plicable. The  salary  of  the  clerk  shall  be  three  thousand  five  hundred 
dollars  per  annum,  which  sum  shall  be  in  full  payment  for  all  service 
rendered  by  such  clerk ;  and  all  fees  of  any  kind  whatever,  and  all  costs, 
shall  be  by  him  turned  into  the  United  States  Treasury.  Said  clerk  shall 
not  be  appointed  by  the  court  or  any  judge  thereof  as  a  commissioner, 
master,  receiver,  or  referee.  The  costs  and  fees  in  the  said  court  shall  be  fixed 
and  established  by  said  court  in  a  table  of  fees  to  be  adopted  and  approved 
by  the  Supreme  Court  of  the  United  States  within  four  months  after 
the  organization  of  said  court:  Provided,  That  the  costs  and  fees  so 
fixed  shall  not,  with  respect  to  any  item,  exceed  the  costs  and  fees  charged 
in  the  Supreme  Court  of  the  United  States;  and  the  same  shall  be  ex- 
pended, accounted  for,  and  paid  over  to  the  Treasury  of  the  United 
States. 

Annotated,  our  §  2254  note  c. 

§  192.  In  addition  to  the  clerk,  the  court  may  appoint  an  assistant  clerk 
at  a  salary  of  two  thousand  dollars  per  annum,  five  stenographic  clerks 
at  a  salary  of  one  thousand  six  hundred  dollars  per  annum  each,  one 
stenographic  reporter  at  a  salary  of  two  thousand  five  hundred  dollars 
per  annum,  and  a  messenger  at  a  salary  of  eight  hundred  and  forty  dollars 
per  annum,  all  payable  in  equal  monthly  instalments,  and  all  of  whom, 
including  the  clerk,  shall  hold  office  during  the  pleasure  of  and  perform 
such  duties  as  are  assigned  them  by  the  court.  Said  reporter  shall  pre>- 


JUDICIAL    CODE  727 

pare  and  transmit  to  the  Secretary  of  the  Treasury  once  a  week  in  time 
for  publication  in  the  Treasury  Decisions  copies  of  all  decisions  rendered 
to  that  date  by  said  court,  and  prepare  and  transmit,  under  the  direction 
of  said  court,  at  least  once  a  year,  reports  of  said  decisions  rendered  to 
that  date,  constituting  a  volume,  which  shall  be  printed  by  the  Treasury 
Pepartment  in  such  numbers  and  distributed  or  sold  in  such  manner  as 
the  Secretary  of  the  Treasury  shall  direct. 
Annotated,  our  §  2255  note  d. 

§  193.  The  marshal  of  said  court  for  the  District  of  Columbia  and  the 
marshals  of  the  several  districts  in  which  said  court  of  customs  appeals 
may  be  held  shall,  under  the  direction  of  the  Attorney  General,  and  with 
his  approval,  provide  such  rooms  in  the  public  buildings  of  the  United 
States  as  may  be  necessary  for  said  court:  Provided,  That  in  case  proper 
rooms  cannot  be  provided  in  such  buildings,  then  the  said  marshals,  with 
the  approval  of  the  Attorney-General,  may,  from  time  to  time,  lease  such 
rooms  as  may  be  necessary  for  said  court.  The  bailiffs  and  messengers  of 
said  court  shall  be  allowed  the  same  compensation  for  their  respective 
services  as  are  allowed  for  similar  services  in  the  existing  district  courts. 
]n  no  case  shall  said  marshals  secure  other  rooms  than  those  regularly 
occupied  by  existing  district  courts,  or  other  public  officers,  except  where 
such  cannot,  by  reason  of  actual  occupancy  or  use,  be  occupied  or  used  by 
said  court  of  customs  appeals. 

Annotated,  our.§  2257   note  f. 

§  194.  The  said  court  of  customs  appeals  shall  be  a  court  of  record, 
with  jurisdiction  as  in  this  chapter  established  and  limited.  It  shall 
prescribe  the  form  and  style  of  its  seal,  and  the  form  of  its  writs  and 
other  process  and  procedure,  and  exercise  such  powers  conferred  by  law 
as  may  be  conformable  and  necessary  to  the  exercise  of  its  jurisdiction. 
It  shall  have  power  to  establish  all  rules  and  regulations  for  the  conduct 
of  the  business  of  the  court,  and  as  may  be  needful  for  the  uniformity 
of  decisions  within  its  jurisdiction  as  conferred  by  law.  It  shall  have 
power  to  review  any  decision  or  matter  within  its  jurisdiction,  and  may 
affirm,  modify,  or  reverse  the  same  and  remand  the  case  with  such  orders 
as  may  seem  to  it  proper  in  the  premises,  which  shall  be  executed  accord- 
ingly. 

Annotated,  our  §  2252  note  a. 

§  195.  The  court  of  customs  appeals  established  by  this  chapter  shall 
exercise  exclusive  appellate  jurisdiction  to  review  by  appeal,  as  herein 
provided,  final  decisions  by  a  board  of  general  appraisers  in  all  cases  as 
to  the  construction  of  the  law  and  the  facts  respecting  the  classification 
of  merchandise  and  the  rate  of  duty  imposed  thereon  under  such  classifi- 
cation, and  the  fees  and  charges  connected  therewith,  and  all  appealable 
questions  as  to  the  jurisdiction  of  said  board,  and  all  appealable  ques- 
tions as  to  the  laws  and  regulations  governing  the  collection  of  the  customs 
revenues;  and  the  judgments  and  decrees  of  said  court  of  customs  appeals 
shall  be  final  in  all  such  cases. 

Annotated,  our  §  2259  note  h. 

§  196.  After  the  organization  of  said  court,  no  appeal  shall  be  taken 
or  allowed  from  any  board  of  United  States  general  appraisers  to  any 


728  APPENDIX 

other  court,  and  no  appellate  jurisdiction  shall  thereafter  be  exercised  or 
allowed  by  any  other  courts  in  cases  decided  by  said  board  of  United 
States  general  appraisers;  but  all  appeals  allowed  by  law  from  such  board 
of  general  appraisers  shall  be  subject  to  review  only  in  the  court  of  customs 
appeals  hereby  established,  according  to  the  provisions  of  this  chapter: 
Provided,  That  nothing  in  this  chapter  shall  be  deemed  to  deprive  the 
Supreme  Court  of  the  United  States  of  jurisdiction  to  hear  and  determine 
all  customs  cases  which  have  heretofore  been  certified  to  said  court  from 
the  United  States  circuit  courts  of  appeals  on  applications  for  writs  of 
certiorari  or  otherwise,  nor  to  review  by  writ  of  certiorari  any  customs  case 
heretofore  decided  or  now  pending  and  hereafter  decided  by  any  circuit  court 
of  appeals,  provided  application  for  said  writ  be  made  within  six  months  after 
August  fifth,  nineteen  hundred  and  nine:  Provided,  further,  That  all  customs 
cases  decided  by  a  circuit  or  district  court  of  the  United  States  or  a  court 
of  a  territory  of  the  United  States  prior  to  said  date  above  mentioned, 
and  which  have  not  been  removed  from  said  courts  by  appeal  or  writ  of 
error,  and  all  such  cases  theretofore  submitted  for  decision  in  said  courts 
and  remaining  undecided  may  be  reviewed  on  appeal  at  the  instance  of 
either  party  by  the  United  States  court  of  customs  appeals,  provided 
sucli  appeal  be  taken  within  one  year  from  the  date  of  the  entry  of  the  order, 
judgment,  or  decrees  sought  to  be  reviewed. 
Annotated,  our  §  2259  note  j. 

§  197.  Immediately  upon  the  organization  of  the  court  of  customs  ap- 
peals, all  cases  within  the  jurisdiction  of  that  court  pending  and  not  sub- 
mitted for  decision  in  any  of  the  United  States  circuit  courts  of  appeals, 
United  States  circuit,  territorial  or  district  courts,  shall,  with  the  record 
and  samples  therein,  be  certified  by  said  courts  to  said  court  of  customs 
appeals  for  further  proceedings  in  accordance  herewith :  Provided,  That 
where  orders  for  the  taking  of  further  testimony  before  a  referee  have 
been  made  in  any  of  such  cases,  the  taking  of  such  testimony  shall  be  'com- 
pleted before  such  certification. 

Annotated,  our  §  2259  note  i. 

§  198.  If  the  importer,  owner,  consignee,  or  agent  of  any  imported  mer- 
chandise, or  the  collector  or  Secretary  of  the  Treasury,  shall  be  dissatisfied 
with  the  decision  of  the  board  of  general  appraisers  as  to  the  construction 
of  the  law  and  the  facts  respecting  the  classification  of  such  merchandise 
and  the  rate  of  duty  imposed  thereon  under  such  classification,  or  with 
any  other  appealable  decision  of  said  board,  they,  or  either  of  them,  may, 
within  sixty  days  next  after  the  entry  of  such  decree  or  judgment,  and  not 
afterwards,  apply  to  the  court  of  customs  appeals  for  a  review  of  the 
questions  of  law  and  fact  involved  in  such  decision:  Provided,  That  in 
Alaska  and  in  the  insular  and  other  outside  possessions  of  the  United 
States  ninety  days  shall  be  allowed  for  making  such  application  to  the  court 
of  customs  appeals.  Such  application  shall  be  made  by  filing  in  the  office 
of  the  clerk  of  said  court  a  concise  statement  of  errors  of  law  and  fact 
complained  of;  and  a  copy  of  such  statement  shall  be  served  on  the  col- 
lector, or  on  the  importer,  owner,  consignee,  or  agent,  as  the  case  may  be. 
Thereupon  the  court  shall  immediately  order  the  board  of  general  ap- 
praisers to  transmit  to  said  court  the  record  and  evidence  taken  by  them, 


JUDICIAL    CODE  729 

together  with  the  certified  statement  of  the  facts  involved  in  the  case 
and  their  decision  thereon;  and  all  the  evidence  taken  by  and  before  said 
board  shall  be  competent  evidence  before  said  court  of  customs  appeals.  The 
decision  of  said  court  of  customs  appeals  shall  be  final,  and  such  cause 
shall  be  remanded  to  said  board  of  general  appraisers  for  further  pro- 
ceedings to  be  taken  in  pursuance  of  such  determination. 

Annotated,  our  §  2260  note  k. 

§  199.  Immediately  upon  receipt  of  any  record  transmitted  to  said  court 
for  determination  the  clerk  thereof  shall  place  the  same  upon  the  calendar 
for  hearing  and  submission;  and  such  calendar  shall  be  called  and  all  cases 
thereupon  submitted,  except  for  good  cause  shown,  at  least  once  every  sixty 
days:  Provided,  That  such  calendar  need  not  be  called  during  the  months 
of  July  and  August  of  any  year. 

Annotated,  our  §  2261  note  1. 


CHAPTER  NINE. 

THE   COMMERCE   COURT. 

The  commerce  court  was  abolished  by  the  deficiency  appropriation  act 
of  October  22,  1913,  ch.  32,  38  Stat.  at  L.  219,  221.  The  jurisdiction  of  this 
court  was  transferred  to  the  various  district  courts.  The  chapter  is  retained 
in  our  Appendix  for  an  understanding  of  the  jurisdiction  so  transferred. 
The  portion  of  the  deficiency  bill  abolishing  the  commerce  court  is  as  follows: 

"The  commerce  court,  created  and  established  by  the  act  entitled  'An 
Act  to  Create  a  Commerce  Court  and  to  Amend  the  Act  Entitled  "An  Act 
to  Regulate  Commerce,"  Approved  February  Fourth.  Eighteen  Hundred  and 
Eighty-Seven,  as  Heretofore  Amended,  and  for  Other  Purposes,'  approved 
June  eighteenth,  nineteen  hundred  and  ten,  is  abolished  from  and  after  De- 
cember thirty- first,  nineteen  hundred  and  thirteen,  and  the  jurisdiction 
vested  in  said  commerce  court  by  said  act  is  transferred  to  and  vested  in 
the  several  district  courts  of  the  United  States,  and  all  acts  or  parts  of 
acts  in  so  far  as  they  relate  to  the  establishment  of  the  commerce  court 
are  repealed.  Nothing  herein  contained  shall  be  deemed  to  affect  the  tenure 
of  any  of  the  judges  now  acting  as  circuit  judges  by  appointment  under 
the  terms  of  said  act,  but  such  judges  shall  continue  to  act  under  assign- 
ment, as  in  the  said  act  provided,  as  judges  of  the  district  courts  and  circuit 
courts  of  appeals;  and  in  the  event  of  and  on  the  death,  resignation,  or 
removal  from  office  of  any  of  such  judges,  his  office  is  hereby  abolished 
and  no  successor  to  him  shall  be  appointed. 

"The  venue  of  any  suit  hereafter  brought  to  enforce,  suspend,  or  set 
aside,  in  whole  or  in  part,  any  order  of  the  Interstate  Commerce  Commis- 
sion shall  be  in  the  judicial  district  wherein  is  the  residence  of  the  party 
or  any  of  the  parties  upon  whose  petition  the  order  was  made,  except  that 
where  the  order  does  not  relate  to  transportation  or  is  not  made  upon  the 
petition  of  any  party  the  venue  shall  be  in  the  district  where  the  matter 
complained  of  in  the  petition  before  the  Commission  arises,  and  except  that 


730  APPENDIX 

where  the  order  does  not  relate  either  to  transportation  or  to  a  matter  ao 
complained  oi  before  the  Commission  the  matter  covered  by  the  order  shall 
be  deemed  to  arise  in  the  district  where  one  of  the  petitioners  in  court  has 
either  its  principal  office  or  its  principal  operating  office.  In  case  such 
transportation  relates  to  a  through  shipment  the  term  "destination"  shall 
be  construed  as  meaning  final  destination  of  such  shipment. 

"The  procedure  in  the  district  courts  in  respect  to  cases  of  which  jurisdic- 
tion is  conferred  upon  them  by  this  act  shall  be  the  same  as  that  heretofore- 
prevailing  in  the  commerce  court.  The  orders,  writs,  and  processes  of  the 
district  courts  may  in  these  cases  run,  be  served,  and  be  returnable  any- 
where in  the  United  States;  and  the  right  of  appeal  from  the  district  courts 
in  such  cases  shall  be  the  same  as  the  right  of  appeal  heretofore  prevail!  1114 
under  existing  law  from  the  commerce  court.  No  interlocutory  injunction 
suspending  or  restraining  the  enforcement,  operation,  or  execution  of,  or 
setting  aside,  in  whole  or  in  part,  any  order  made  or  entered  by  the  Inter- 
state Commerce  Commission  shall  be  issued  or  granted  by  any  district 
court  of  the  United  States,  or  by  any  judge  thereof,  or  by  any  circuit  judge 
acting  as  district  judge,  unless  the  application  for  the  same  shall  be  pre- 
sented to  a  circuit  or  district  judge,  and  shall  be  heard  and  determined  by 
three  judges,  of  whom  at  least  one  shall  be  a  circuit  judge,  and  unless  a 
majority  of  said  three  judges  shall  concur  in  granting  such  application. 
When  such  application  as  aforesaid  is  presented  to  a  judge,  lie  shall  im- 
mediately call  to  his  assistance  to  hear  and  determine  the  application  two 
other  judges.  Said  application  shall  not  be  heard  or  determined  before  at 
least  five  days'  notice  of  the  hearing  has  been  given  to  the  Interstate  Com- 
merce Commission,  to  the  Attorney  General  of  the  United  States,  and  to 
such  other  persons  as  may  be  defendants  in  the  suit:  Provided,  That  in 
cases  where  irreparable  damage  would  otherwise  ensue  to  the  petitioner,  a 
majority  of  said  three  judges  concurring,  may,  on  hearing,  after  not  less 
than  three  days'  notice  to  the  Interstate  Commerce  Commission  and  the 
Attorney  General,  allow  a  temporary  stay  or  suspension,  in  whole  or  in 
part,  of  the  operation  of  the  order  of  the  Interstate  Commerce  Commis- 
sion for  not  more  than  sixty  days  from  the  date  of  the  order  of  said  judges 
pending  the  application  for  the  order  or  injunction,  in  which  case  the  said 
order  shall  contain  a  specific  finding,  based  upon  evidence  submitted  to  the 
judges  making  the  order  and  identified  by  reference  thereto,  that  such  irrep- 
arable damage  would  result  to  the  petitioner  and  specifying  the  nature  of 
the  damage.  The  said  judges  may,  at  the  time  of  hearing  such  applica- 
tion, upon  a  like  finding,  continue  the  temporary  stay  or  suspension  in 
whole  or  in  part  until  decision  upon  the  application.  The  hearing  upon 
such  application  for  an  interlocutory  injunction  shall  be  given  precedence 
and  shall  be  in  every  way  expedited  and  be  assigned  for  a  hearing  at  the 
earliest  practicable  day  after  the  expiration  of  the  notice  hereinbefore  pro- 
vided for.  An  appeal  may  be  taken  direct  to  the  Supreme  Court  of  the 
United  States  from  the  order  granting  or  denying,  after  notice  and  hearing, 
an  interlocutory  injunction  in  such  case,  if  such  appeal  be  taken  within 
thirty  days  after  the  order,  in  respect  to  which  complaint  is  made,  is  granted 
or  refused;  and  upon  the  final  hearing  of  any  suit  brought  to  suspend  or 
set  aside,  in  whole  or  in  part,  any  order  of  said  Commission  the  same  re- 


JUDICIAL    CODE  T31 

quirement  as  to  judges  and  the  same  procedure  as  to  expedition  and  appeal 
shall  apply.  A  final  judgment  or  decree  of  the  district  court  may  be  re- 
viewed by  the  Supreme  Court  of  the  United  States  if  appeal  to  the  Supreme 
Court  be  taken  by  an  aggrieved  party  within  sixty  days  after  the  entry  of 
such  final  judgment  or  decree,  and  such  appeals  may  be  taken  in  like  manner 
as  appeals  are  taken  under  existing  law  in  equity  cases.  And  in  such  case 
the  notice  required  shall  be  served  upon  the  defendants  in  the  case  and 
upon  the  attorney  general  of  the  state.  All  cases  pending  in  the  commerce 
court  at  the  date  of  the  passage  of  this  act  shall  be  deemed  pending  in  and 
be  transferred  forthwith  to  said  district  courts  except  cases  which  may 
previously  have  been  submitted  to  that  court  for  final  decree,  and  the  latter 
to  be  transferred  to  the  district  courts  if  not  decided  by  the  commerce 
court  before  December  first,  nineteen  hundred  and  thirteen,  and  all  cases 
wherein  injunctions  or  other  orders  or  decrees,  mandatory  or  otherwise, 
have  been  directed  or  entered  prior  to  the  abolition  of  the  said  court  shall 
be  transferred  forthwith  to  said  district  courts,  which  shall  have  jurisdiction 
to  proceed  therewith  and  to  enforce  said  injunctions,  orders,  or  decrees. 
Each  of  said  cases  and  all  the  records,  papers,  and  proceedings  shall  be  trans- 
ferred to  the  district  court  wherein  it  might  have  been  filed  at  the  time  it 
was  filed  in  the  commerce  court  if  this  act  had  then  been  in  effect;  and  if 
it  might  have  been  filed  in  any  one  of  two  or  more  district  courts  it  shall 
be  transferred  to  that  one  of  said  district  courts  which  may  be  designated 
by  the  petitioner  or  petitioners  in  said  case,  or,  upon  failure  of  said  peti- 
tioners to  act  in  the  premises  within  thirty  days  after  the  passage  of  this 
act,  to  such  one  of  said  district  courts  as  may  be  designated  by  the  judges 
of  the  commerce  court.  The  judges  of  the  commerce  court  shall  have  author- 
ity, and  are  hereby  directed,  to  make  any  and  all  orders  and  to  take  any 
other  action  necessary  to  transfer  as  aforesaid  the  cases  and  all  the  records, 
papers,  and  proceedings  then  pending  in  the  commerce  court  to  said  district 
courts.  All  administrative  books,  dockets,  files,  and  all  papers  of  the  com- 
merce court  not  transferred  as  part  of  the  record  of  any  particular  case 
shall  be  lodged  in  the  Department  of  Justice.  All  furniture,  carpets,  and 
other  property  of  the  commerce  court  is  turned  over  to  the  Department  of 
Justice,  and  the  Attorney  General  is  authorized  to  supply  such  portion  there- 
of as  in  his  judgment  may  be  proper  and  necessary  to  the  United  States 
board  of  mediation  and  conciliation. 

"Any  case  hereafter  remanded  from  the  Supreme  Court  which,  but  for  the 
passage  of  this  act,  would  have  been  remanded  to  the  commerce  court,  shall 
be  remanded  to  a  district  court,  designated  by  the  Supreme  Court,  wherein 
it  might  have  been  instituted  at  the  time  it  was  instituted  in  the  commerce 
court  if  this  act  had  then  been  in  effect,  and  thereafter  such  district  court 
shall  take  all  necessary  and  proper  proceedings  in  such  case  in  accordance 
with  law  and  such  mandate,  order,  or  decree  therein  as  may  be  made  by 
said  Supreme  Court. 

"All  laws  or  parts  of  laws  inconsistent  with  the  foregoing  provisions  re- 
lating to  the  commerce  court,  are  rept-aled." 


732  APPENDIX 

Sec.  Sec. 

200.  Commerce   court  created;    judg-  sions    to    be    against    United 

es  of,  appointment   and  desig-  States;       restraining      orders, 

nation;    expense    allowance    to  when   granted   without   notice, 

judges.  209.  Jurisdiction    of    the   court,    how 

201.  Additional    circuit    judges;    ap-  invoked;    practice   and   pioced- 

pointment    and    assignment.  ure. 

202.  Officers     of     the     court;     clerk,      210.  Final  judgments  and  decrees  re- 

marshal,   etc.;    salaries,   etc.  viewable    in    Supreme    Court. 

203.  Court    to    be    always    open    for       211.  Suits     to     be     against     United 

business;     sessions    of,    to    be  States;     when    United     States 

held  in   Washington   and   else-  may  intervene. 

where.  212.  Attorney  General  to  control  all 

204.  Marshals   to   provide   rooms   for  cases;      Interstate      Commerce 

holding       court       outside       of  Commission  may  appear  as  of 

Washington.  right;    parties   interested   may 

205.  Assignment   of   judges   to   other  intervene,  etc. 

duty;    vacancies,   how   filled.  213.  Complainants    may    appear    and 

206.  Powers    of    court    and    judges;  be  made  parties  to  case. 

writs,  process,  procedure,  etc.  214.  Pending  cases  to  be  transferred 

207.  Jurisdiction   of   the   court.  to  commerce  court ;  exception : 

208.  Suits   to   enjoin,   etc.,   orders   of  status   of   transferred   cases. 

Interstate   Commerce   Commis- 

§  200.  There  shall  be  a  court  of  the  United  States,  to  be  known  as  the 
commerce  court,  which  shall  be  a  court  of  record,  and  shall  have  a  seal 
of  such  form  and  style  as  the  court  may  prescribe.  The  said  court  shall 
be  composed  of  five  judges,  to  be  from  time  to  time  designated  and  assigned 
thereto  by  the  Chief  Justice  of  the  United  States,  from  among  the  circuit 
judges  of  the  United  States,  for  the  period  of  five  years,  except  that  in  the 
first  instance  the  court  shall  be  composed  of  the  five  additional  circuit  judges 
referred  to  in  the  next  succeeding  section,  who  shall  be  designated  by  the 
President  to  serve  for  one,  two,  three,  four,  and  five  years,  respectively  in 
order  that  the  period  of  designation  of  one  of  the  said  judges  shall  expire  in 
each  year  thereafter.  In  case  of  the  death,  resignation,  or  termination  of 
assignment  of  any  judge  so  designated,  the  Chief  Justice  shall  designate 
a  circuit  judge  to  fill  the  vacancy  so  caused  and  to  serve  during  the  un- 
expired  period  for  which  the  original  designation  was  made.  After  the  year 
nineteen  hundred  and  fourteen  no  circuit  judge  shall  be  redesignated  to 
serve  in  the  commerce  court  until  the  expiration  of  at  least  one  year  after 
the  expiration  of  the  period  of  his  last  previous  designation.  The  judge 
first  designated  for  the  five  year  period  shall  be  presiding  judge  of  said  court, 
and  thereafter  the  judge  senior  in  designation  shall  be  the  presiding  judge. 
The  associate  judges  shall  have  precedence  and  shall  succeed  to  the  place 
and  powers  of  the  presiding  judge  whenever  he  may  be  absent  or  incapable  of 
acting  in  the  order  of  the  date  of  their  designations.  Four  of  said  judges 
shall  constitute  a  quorum,  and  at  least  a  majority  of  the  court  shall  concur 
in  all  decisions.  Each  of  the  judges  during  the  period  of  his  service  in  the 
commerce  court  shall,  on  account  of  the  regular  sessions  of  the  court  being 
held  in  the  city  of  Washington,  receive  in  addition  to  his  salary  as  circuit 
judge  an  expense  allowance  at  the  rate  of  one  thousand  five  hundred  dollars 
per  annum. 

36  Stat.  at  L.  1146.  Comp.  St.  1911.  p.  214.  1912  Supp.  F.  S.  A.  v.  1,  p. 
215.  Re-enacting  part  of  act  of  June  18,  1910,  ch.  309,  36  Stat.  at  L.  539. 


JUDICIAL    CODE  733 

§  201.  The  five  additional  circuit  judges  authorized  by  the  act  to  create 
a  commerce  court,  and  for  other  purposes,  approved  June  eighteenth,  nineteen 
hundred  and  ton,  shall  hold  office  during  good  behavior,  and  from  time  to 
time  shall  be  designated  and  assigned  by  the  Chief  Justice  of  the  United 
States  for  service  in  the  district  court  of  any  district,  or  the  circuit  court 
o?  appeals  for  any  circuit,  or  in  the  commerce  court,  and  when  so  designated 
and  assigned  for  service  in  a  district  court  or  circuit  court  of  appeals  shall 
have  the  powers  and  jurisdiction  in  this  act  conferred  upon  a  circuit  judge 
in  his  circuit. 

36  Stat.  at  L.  1146,  Comp.  St.  1911,  p.  214,  1912  Supp.  F.  S.  A.  v.  1,  p. 
216.  Re-enacting  part  of  Act  of  June  18,  1910,  36  Stat.  at  L.  539. 

§  202.  The  court  shall  also  have  a  clerk  and  a  marshal,  with  the  same 
duties  and  powers,  so  far  as  they  may  be  appropriate  and  are  not  altered 
by  rule  of  the  court,  as  are  now  possessed  by  the  clerk  and  marshal,  re- 
spectively, of  the  Supreme  Court  of  the  United  States.  The  offices  of  tin; 
clerk  and  marshal  of  the  court  shall  be  in  the  city  of  Washington,  in  the 
District  of  Columbia.  The  judges  of  the  court  shall  appoint  the  clerk  and 
marshal,  and  may  also  appoint,  if  they  find  it  necessary,  a  deputy  clerk  and 
deputy  marshal;  and  such  clerk,  marshal,  deputy  clerk,  and  deputy  marshal, 
shall  hold  office  during  the  pleasure  of  the  court.  The  salary  of  the  clerk 
shall  be  four  thousand  dollars  per  annum;  the  salary  of  the  marshal  three 
thousand  dollars  per  annum;  the  salary  of  the  deputy  clerk  two  thousand 
five  hundred  dollars  per  annum;  and  the  salary  of  the  deputy  marshal  two 
thousand  five  hundred  dollars  per  annum.  The  clerk  and  marshal  may, 
with  the  approval  of  the  court,  employ  all  requisite  assistance.  The  costs 
and  fees  in  said  court  shall  be  established  by  the  court  in  a  table  thereof, 
approved  by  the  Supreme  Court  of  the  United  States,  within  four  months  after 
the  organization  of  the  court;  but  such  costs  and  fees  shall  in  no  case  exceed 
those  charged  in  the  Supreme  Court  of  the  United  States,  and  shall  be  ac- 
counted for  and  paid  into  the  Treasury  of  the  United  States. 

36  Stat.  at  L.  1147,  Comp.  St.  1911,  p.  215,  1912  Supp.  F.  S.  A.  v.  1,  p. 

216.  Re-enacting  part  of  Act  of  June  18,  1910,  36  Stat.  at  L.  539. 

§  203.  The  commence  court  shall  always  be  open  for  the  transaction  of 
business.  Its  regular  sessions  shall  be  held  in  the  city  of  Washington,  in 
the  District  of  Columbia;  but  the  powers  of  the  court  or  of  any  judge  there- 
of, or  of  the  clerk,  marshal,  deputy  clerk,  or  deputy  marshal,  may  be  exercised 
anywhere  in  the  United  States;  and  for  expedition  of  the  work  of  the  court 
and  the  avoidance  of  undue  expense  or  inconvenience  to  suitors  the  court 
shall  hold  sessions  in  different  parts  of  the  United  States  as  may  be  found 
desirable.  The  actual  and  necessary  expenses  of  the  judges,  clerk,  marshal, 
deputy  clerk,  and  deputy  marshal  of  the  court  incurred  for  travel  and  attend- 
ance elsewhere  than  in  the  city  of  Washington,  shall  be  paid  upon  the  written 
and  itemized  certificate  of  such  judge,  clerk,  marshal,  deputy  clerk,  or  deputy 
marshal,  by  the  marshal  of  the  court,  and  shall  be  allowed  to  him  in  the 
settlement  of  his  accounts  with  the  United  States. 

36  Stat.  at  L.  1148.  Comp.  St.   1911,  p.  215.   1912  Supp.  F.  S.  A.  v.   1,  p. 

217.  Re-enacting  part  of  Act  of  June  18,  1910,  36  Stat.  at  L.  539. 


734  APPENllIX 

§  204.  The  United  States  marshals  of  the  several  districts  outside  of 
the  city  of  Washington  in  which  the  commerce  court  may  hold  its  sessions 
shall  provide,  under  the  direction  and  with  the  approval  of  the  Attorney 
General,  such  rooms  in  the  public  buildings  of  the  United  States  as  may  be 
necessary  for  the  court's  use;  but  in  case  proper  rooms  cannot  be  provided 
in  such  public  buildings,  said  marshals,  with  the  approval  of  the  Attorney 
General,  may  then  lease  from  time  to  time  other  necessary  rooms  for  the 
court. 

.36  Stat.  at  L.  1148,  Comp.  St.  1911,  p.  215,  1912  Supp.  F.  S.  A.  v.  1,  p. 
217.  Re-enacting  part  of  Act  of  June  18,  1910,  36  Stat.  at  L.  539. 

§  205.  If,  at  any  time,  the  business  of  the  commerce  court  does  not  require 
the  services  of  all  the  judges,  the  Chief  Justice  of  the  United  States  may, 
by  writing,  signed  by  him  and  filed  in  the  Department  of  Justice,  terminate 
the  assignment  of  any  of  the  judges,  or  temporarily  assign  him  for  service 
in  any  district  court  or  circuit  court  of  appeals.  In  cases  of  illness  or  other 
disability  of  any  judge  assigned  to  the  commerce  court  the  Chief  Justice 
of  the  United  States  may  assign  any  other  circuit  judge  of  the  United  States 
to  act  in  his  place,  and  may  terminate  such  assignment  when  the  exigency 
therefor  shall  cease;  and  any  circuit  judge  so  assigned  to  act  in  place  of 
such  judge  shall,  during  his  assignment,  exercise  all  the  powers  and  perform 
all  the  functions  of  such  judge. 

36  Stat.  at  L.  1148,  Comp.  St.  1911.  p.  216,  1912  Supp.  F.  S.  A.  v.  1,  p. 
217.  Re-enacting  part  of  Act  of  June  18,  1910,  36  Stat.  at  L.  539. 

§  206.  In  all  cases  within  its  jurisdiction  the  commerce  court,  and  each 
of  the  judges  assigned  thereto,  shall,  respectively,  have  and  may  exercise 
any  and  all  of  the  powers  of  a  district  court  of  the  United  States  and  of 
the  judges  of  said  court,  respectively,  so  far  as  the  same  may  be  appropriate 
to  the  effective  exercise  of  the  jurisdiction  hereby  conferred.  The  commerce 
court  may  issue  all  writs  and  process  appropriate  to  the  full  exercise  of  its 
jurisdiction  and  powers  and  may  prescribe  the  form  thereof.  It  may  also, 
from  time  to  time,  establish  such  rules  and  regulations  concerning  pleading, 
practice,  or  procedure  in  cases  or  matters  within  its  jurisdiction  as  to  the 
court  shall  seem  wise  and  proper.  Its  orders,  writs,  and  processes  may  run, 
be  served,  and  be  returnable  anywhere  in  the  United  States;  and  the  marshal 
and  deputy  marshal  of  said  court  and  also  the  United  States  marshals  and 
deputy  marshals  in  the  several  districts  of  the  United  States  shall  have 
like  powers  and  be  under  like  duties  to  act  for  and  in  behalf  of  said 
court  as  pertain  to  United  States  marshals  and  deputy  marshals  generally 
when  acting  under  like  conditions  concerning  suits  or  matters  in  the  district 
courts  of  the  United  States. 

36  Stat.  at  L.  1148,  Comp.  St.  1911.  p.  216,  1912  Supp.  F.  S.  A.  v.  1.  p. 
217.  Re-enacting  part  of  Act  of  June  18,  1910,  36  Stat.  aft  L.  539.  Con- 
struction. Ex  parte  Metropolitan  Water  Co.  220  U.  S.  539,  55  L.  ed.  575, 
31  Sup.  Ct.  Rep.  600. 


JUDICIAL    CODE  735 

§  207.  The  commerce  court  shall  have  the  jurisdiction  possessed  by  circuit 
courts  of  the  United  States  and  the  judges  thereof  immediately  prior  to 
June  eighteenth,  nineteen  hundred  and  ten,  over  all  cases  of  the  following 
kinds: 

First.  All  cases  for  the  enforcement,  otherwise  than  by  adjudication  and 
Collection  of  a  forfeiture  or  penalty  or  by  infliction  of  criminal  punishment, 
of  any  order  of  the  Interstate  Commerce  Commission  other  than  for  the  pay- 
ment of  money. 

Second.  Cases  brought  to  enjoin,  set  aside,  annul,  or  suspend  in  whole  or  in 
part  any  order  of  the  Interstate  Commerce  Commission. 

Third.  Such  cases  as  by  section  three  of  the  act  entitled  "An  Act  to 
Further  Regulate  Commerce  with  Foreign  Nations  and  Among  the  States," 
approved  February  nineteenth,  nineteen  hundred  and  three,  are  authorized 
to  be  maintained  in  a  circuit  court  of  the  United  States. 

Fourth.  All  such  mandamus  proceedings  as  under  the  provisions  of  section 
twenty  or  section  twenty-three  of  the  act  entitled  "An  Act  to  Regulate  Com- 
merce," approved  February  fourth,  eighteen  hundred  and  eighty-seven,  as 
amended,  are  authorized  to  be  maintained  in  a  circuit  court  of  the  United 
States. 

Nothing  contained  in  this  chapter  shall  be  construed  as  enlarging  the  juris- 
diction now  possessed  by  the  circuit  courts  of  the  United  States  or  the 
judges  thereof,  that  is  hereby  transferred  to  and  vested  in  the  commerce 
court. 

The  jurisdiction  of  the  commerce  court  over  cases  of  the  foregoing  classes 
shall  be  exclusive;  but  this  chapter  shall  not  affect  the  jurisdiction  possessed 
by  any  circuit  or  district  court  of  the  United  States  over  cases  or  proceed- 
ings of  a  kind  not  within  the  above-enumerated  classes. 

36  Stat.  at  L.  1148,  Comp.  Stat.  1911,  p.  216,  1912  Supp.  F.  S.  A.  v.  1,  p.  218. 
Re-enacting  part  of  Act  of  June  18,  1910,  36  Stat.  at  L.  539. 

Construction.    Proctor  &  Gamble  Co.  v.  United  states,  188  Fed.  221. 

•Jurisdiction,  Proctor  &  Gamble  v.  United  States,  225  U.  S.  282,  56  L.  ed. 
10!H.  :i2  Sup.  Ct.  Rep.  761. 

Misconception  of  extent  of  powers  by  Commission,  Interstate  C'omm.  v. 
Clyde  Steamship  Co.  181  U.  S.  29,  45  L.  ed.  729,  21  Sup.  Ct.  Rep.  512. 

Directing  common  carriers,  Southern  Pac.  v.  Interstate  Com.  Com.  200 
U.  S.  536,  50  L.  ed.  594,  26  Sup.  Ct.  Rep.  330. 

Enforcing  order  of  Commission,  Farmer's  Loan  &  Trust  Co.  v.  Northern 
Pac.  Ry.  Co.  83  Fed.  249. 

Power  of  a  court  of  equity,  Re  Central  Stock  Yards  Co.  v.  Louisville  & 
N.  R.  Co.  112  Fed.  823. 

Commerce  Commission,  an  administrative  body,  Western  N.  Y.  &  P.  R.  Co.  v. 
Penn.  Refining  Co.  137  Fed.  343,  70  C.  C.  A.  23. 

General  powers,  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Interstate  Com.  Com.  171  Fed. 
680. 

§  208.  Suits  to  enjoin,  set  aside,  annul,  or  suspend  any  order  of  the  Inter- 
state Commerce  Commission  shall  be  brought  in  the  commerce  court  against 
the  United  States.  The  pendency  of  such  suit  shall  not  of  itself  stay  or 
suspend  the  operation  of  the  order  of  the  Interstate  Commerce  Commission ; 
but  the  commerce  court,  in  its  discretion,  may  restrain  or  suspend,  in  whole 
or  in  part,  the  operation  of  the  Commission's  order  pending  the  final  hearing 
and  determination  of  the  suit.  No  order  or  injunction  so  restraining  or 


736  APPENDIX 

suspending  an  order  of  the  Interstate  Commerce  Commission  shall  be  made 
by  the  commerce  court  otherwise  than  upon  notice  and  after  hearing,  except 
that  in  cases  where  irreparable  damage  would  otherwise  ensue  to  the  petition- 
er, said  court,  or  a  judge  thereof  may,  on  hearing  after  not  less  than  three 
days'  notice  to  the  Interstate  Commerce  Commission  and  the  Attorney  General, 
allow  a  temporary  stay  or  suspension  in  whole  or  in  part  of  the  operation 
of  the  order  of  the  Interstate  Commerce  Commission  for  not  more  than  sixty 
days  from  the  date  of  the  order  of  such  court  or  judge,  pending  application 
to  the  court  for  its  order  or  injunction,  in  which  case  the  said  order  shall 
contain  a  specific  finding,  based  upon  evidence  submitted  to  the  judge  making 
the  order  and  identified  by  reference  thereto,  that  such  irreparable  damage 
•would  result  to  the  petitioner  and  specifying  the  nature  of  the  damage.  The 
court  may,  at  the  time  of  hearing  such  application,  upon  a  like  finding,  con- 
tinue the  temporary  stay  or  suspension  in  whole  or  in  part  until  its  decision 
upon  the  application. 

36  Stat.  at  L.  1149,  Comp.  St.  1911,  p.  217,  1912  Supp.  F.  S.  A.  v.  1,  p. 
221.  Re-enacting  part  of  Act  of  June  18,  1910,  36  Stat.  at  L.  542.  In- 
junctions United  States  v.  Bait.  &  Ohio  R.  Co.  225  U.  S.  306,  56  L.  ed.  1100, 
32  Sup.  Ct.  Rep.  817. 

§  209.  The  jurisdiction  of  the  commerce  court  shall  be  invoked  by  filing 
in  the  office  of  the  clerk  of  the  court  a  written  petition  setting  forth  briefly 
and  succinctly  the  facts  constituting  the  petitioner's  cause  of  action,  and 
specifying  the  relief  sought^  A  copy  of  such  petition  shall  be  forthwith  served 
by  the  marshal  or  a  deputy  marshal  of  the  commerce  court  or  by  the  proper 
United  States  marshal  or  deputy  marshal  upon  every  defendant  therein  named, 
and  when  the  United  States  is  a  party  defendant,  the  service  shall  be  made 
by  filing  a  copy  of  said  petition  in  the  office  of  the  Secretary  of  the  Inter- 
state Commerce  Commission  and  in  the  Department  of  Justice.  Within 
thirty  days  after  the  petition  is  served,  unless  that  time  is  extended  by  order 
of  the  court  or  a  judge  thereof,  an  answer  to  the  petition  shall  be  filed  in 
the  clerk's  office,  and  a  copy  thereof  mailed  to  the  petitioner's  attorney, 
which  answer  shall  briefly  and  categorically  respond  to  the  allegations  of  the 
petition.  No  replication  need  be  filed  to  the  answer,  and  objections  to 
the  sufficiency  of  the  petition  or  answer  as  not  setting  forth  a  cause  of 
action  or  defense  must  be  taken  at  the  final  hearing  or  by  motion  to  dismiss 
the  petition  based  on  said  grounds,  which  motion  may  be  made  at  any  time 
before  answer  is  filed.  In  case  no  answer  shall  be  filed  as  provided  herein 
the  petitioner  may  apply  to  the  court  on  notice  for  such  relief  as  may  be 
proper  upon  the  facts  alleged  in  the  petition.  The  court  may,  by  rule, 
prescribe  the  method  of  taking  evidence  in  cases  pending  in  said  court;  and 
may  prescribe  that  the  evidence  be  taken  before  a  single  judge  of  the  court, 
with  power  to  rule  upon  the  admission  of  evidence.  Except  as  may  be  other- 
wise provided  in  this  chapter,  or  by  rule  of  the  court,  the  practice  and  pro- 
cedure in  the  commerce  court  shall  conform  as  nearly  as  may  be  to  that  in 
like  cases  in  a  district  court  of  the  United  States. 

36  Stat.  at  L.  1149,  Comp.  St.  1911,  p.  217,  1912  Supp.  F.  S.  A.  v.  1,  p. 
221.  Re-enacting  part  of  Act  of  June  18,  1910,  36  Stat.  at  L.  539.  A 
motion  to  dismiss  the  petition  can  be  made  under  this  section.  Proctor  & 


JUDICIAL    CODE  737 

Gamble  Co.  v.  United  States,  118  Fed.  221;   Southern  Pac.  Co.  v.  Interstate 
Commerce  Commission,  188  Fed.  241. 

§  210.  A  final  judgment  or  decree  of  the  commerce  court  may  be  reviewed 
by  the  Supreme  Court  of  the  United  States  if  appeal  to  the  Supreme  Court 
ba,  taken  by  an  aggrieved  party  within  sixty  days  after  the  entry  of  said 
final  judgment  or  decree.  Such  appeal  may  be  taken  in  like  manner  as 
appeals  from  a  district  court  of  the  United  States  to  the  Supreme  Court, 
and  the  commerce  court  may  direct  the  original  record  to  be  transmitted  on 
appeal  instead  of  a  transcript  thereof.  The  Supreme  Court  may  affirm,  re- 
verse, or  modify  the  final  judgment  or  decree  of  the  commerce  court  as  the 
case  may  require.  Appeal  to  the  Supreme  Court,  however,  shall  in  no  case 
supersede  or  stay  the  judgment  or  decree  of  the  commerce  court  appealed 
from,  unless  the  Supreme  Court  or  a  justice  thereof  shall  so  direct;  and 
•appellant  shall  give  bond  in  such  form  and  of  such  amount  as  the  Supreme 
Court,  or  the  justice  of  that  court  allowing  the  stay,  may  require.  An  ap- 
peal may  also  be  taken  to  the  Supreme  Court  of  the  United  States  from  an 
interlocutory  order  or  decree  of  the  commerce  court  granting  or  continuing 
an  injunction  restraining  the  enforcement  of  an  order  of  the  Interstate  Com- 
merce Commission,  provided  such  appeal  be  taken  within  thirty  days  from 
the  entry  of  such  order  or  decree.  Appeals  to  the  Supreme  Court  under 
this  section  shall  have  priority  in  hearing  and  determination  over  all  other 
causes  except  criminal  causes  in  that  court. 

36' Stat.  at  L.  1150,  Comp.  St.  1911,  p.  218,  1912  Supp.  F.  S.  A.  v.  1,  p. 
222.  Re-enacting  part  of  Act  of  June  18,  1910,  36  Stat.  at  L.  539-542.  In 
general,  United  States  v.  Bait.  &  Ohio  R.  Co.  225  U.  S.  306,  56  L.  ed.  1100, 
32  Sup.  Ct.  Rep.  817. 

§  211.  All  cases  and  proceedings  in  the  commerce  court  which  but  for  this 
chapter  would  be  brought  by  or  against  the  Interstate  Commerce  Commission, 
shall  be  brought  by  or  against  the  United  States,  and  the  United  States  may 
intervene  in  any  case  or  proceeding  in  the  commerce  court  whenever,  though 
it  has  not  been  made  a  party,  public  interests  are  involved. 

36  Stat.  at  L.  1150,  Comp.  St.  1911,  p.  218,  1912  Supp.  F.  S.  A.  v.  1,  p. 
•1-1-2.  Re-enacting  part  of  Act  of  June  18,  1910,  36  Stat.  at  L.  539,  542. 

§  212.  The  Attorney  General  shall  have  charge  and  control  of  the  in- 
terests of  the  government  in  all  cases  and  proceedings  in  the  commerce 
court,  and  in  the  Supreme  Court  of  the  United  States  upon  appeal  from 
the  commerce  court.  If  in  his  opinion  the  public  interest  requires  it,  he  may 
retain  and  employ  in  the  name  of  the  United  States,  within  the  appropria- 
tions from  time  to  time  made  by  the  Congress  for  such  purposes,  such  special 
attorneys  and  counselors  at  law  as  he  may  think  necessary  to  assist  in 
the  discharge  of  any  of  the  duties  incumbent  upon  him  and  his  subordinate 
attorneys;  and  the  Attorney  General  shall  stipulate  with  such  special  at- 
torneys and  counsel  the  amount  of  their  compensation,  which  shall  not  be  in 
excess  of  the  sums  appropriated  therefor  by  Congress  for  such  purposes,  and 
shall  have  supervision  of  their  action:  Provided,  That  the  Interstate  Com- 
merce Commission  and  any  party  or  parties  in  interest  to  the  proceeding 
Montg. — 47. 


738  APPENDIX 

before  the  Commission,  in  which  an  order  or  requirement  is  made,  may  appear 
as  parties  thereto  of  their  own  motion  and  as  to  right,  and  be  represented 
by  their  counsel,  in  any  suit  wherein  is  involved  the  validity  of  such  order 
or  requirement  or  any  part  thereof,  and  the  interest  of  such  party;  and  the 
court  wherein  is  pending  such  suit  may  make  all  such  rules  and  orders  as  to 
such  appearances  and  representations,  the  number  of  counsel,  and  all  matters 
of  procedure,  and  otherwise,  as  to  subserve  the  ends  of  justice  and  speed 
the  determination  of  such  suits:  Provided,  further,  That  communities,  asso- 
ciations, corporations,  firms,  and  individuals  who  are  interested  in  the  con- 
troversy or  question  before  the  Interstate  Commerce  Commission,  or  in  any 
suit  which  may  be  brought  by  anyone  under  the  provisions  of  this  chapter,  or 
the  acts  of  which  it  is  amendatory  or  which  are  amendatory  of  it,  relating  to 
action  of  the  Interstate  Commerce  Commission,  may  intervene  in  said  suit 
or  proceedings  at  any  time  after  the  institution  thereof;  and  the  Attorney 
General  shall  not  dispose  of  or  discontinue  said  suit  or  proceeding  over  the 
objection  of  such  party  or  intervenor  aforesaid,  but  said  intervenor  or  in- 
tervenors  may  prosecute,  defend,  or  continue  said  suit  or  proceeding  un- 
affected by  the  action  or  non-action  of  the  Attorney  General  therein. 

36  Stat.  at  L.  1150,  Comp.  St.  1911,  p.  219,  1912  Supp.  F.  S.  A.  v.  1,  p. 

222.  Re-enacting  part  of  June  18,  1910,  36   Stat.  at  L.  539,  543. 

§  213.  Complainants  before  the  Interstate  Commerce  Commission  interested 
in  a  case  shall  have  the  right  to  appear  and  be  made  parties  to  the  case 
and  be  represented  before  the  courts  by  counsel,  under  such  regulations  as 
are  now  permitted  in  similar  circumstances  under  the  rules  and  practice 
of  equity  courts  of  the  United  States. 

36  Stat.  at  L.  1151,  Comp.  St.  1911,  p.  219,  1912  Supp.  F.  S.  A.  v.  1,  p. 

223.  Re-enacting  part  of  Act  of  June  18,  1910,  36  Stat.  at  L.  539,  543. 

§  214.  Until  the  opening  of  the  commerce  court,  all  cases  and  proceedings 
of  which  from  that  time  the  commerce  court  is  hereby  given  exclusive  juris- 
diction may  be  brought  in  the  same  courts  and  conducted  in  like  manner 
and  with  like  effect  as  is  now  provided  by  law;  and  if  any  such  case  or 
proceeding  shall  have  gone  to  final  judgment  or  decree  before  the  opening 
of  the  commerce  court,  appeal  may  be  taken  from  such  final  judgment  or 
decree  in  like  manner  and  with  like  effect  as  is  now  provided  by  law.  Any 
such  case  or  proceeding  within  the  jurisdiction  of  the  commerce  court  which 
may  have  been  begun  in  any  other  court  as  hereby  allowed,  before  the  said 
date,  shall  be  forthwith  transferred  to  the  commerce  court,  if  it  has  not  yet 
proceeded  to  final  judgment  or  decree  in  such  other  court  unless  it  has  been 
finally  submitted  for  the  decision  of  such  court,  in  which  case  the  cause  shall 
proceed  in  such  court  to  final  judgment  or  decree  and  further  proceeding 
thereafter,  and  appeal  may  be  taken  direct  to  the  Supreme  Court;  and  if 
remanded,  such  cause  may  be  sent  back  to  the  court  from  which  the  appeal 
was  taken  or  to  the  commerce  court  for  further  proceeding  as  the  Supreme 
Court  shall  direct.  All  previous  proceedings  in  such  transferred  case  shall 
stand  and  operate  notwithstanding  the  transfer,  subject  to  the  same  control 
over  them  by  the  commerce  court  and  to  the  same  right  of  subsequent  action 


JUDICIAL    CODE 


739 


in  the  case  or  proceeding  as  if  the  transferred  case  or  proceeding  had  been 
originally  begun  in  the  commerce  court.  The  clerk  of  the  court  from  which 
any  case  or  proceeding  is  so  transferred  to  the  commere  court  shall  transmit 
to  and  file  in  the  commerce  court  the  originals  of  all  papers  filed  in  such  case 
or  proceeding  and  a  certified  transcript  of  all  record  entries  in  the  case  or 
proceeding  up  to  the  time  of  transfer. 

36  Stat.  at  L.  1151,  Comp.  St.  1911,  p.  220,  1918  Supp.  F.  S.  A.  v.  1,  p. 
223.  Re-enacting  part  of  Act  of  June  18,  1910,  36  Stat.  at  L.  539,  544.  See 
Hooker  v.  Interstate  Commerce  Commission,  188  Fed.  242. 


CHAPTER  TEN. 


THE   SUPBEME   COUBT. 


Sec. 
215. 
216. 

217. 

218. 
219. 
220. 
221. 
222. 

223. 
224. 
225. 
226. 

227. 

228. 


229. 

230. 
231. 

232. 

233. 
234. 

235. 
236. 
237. 

238. 


Number    of    justices. 

Precedents  of  the  associate  jus- 
tices. 

Vacancy  in  the  office  of  Chief 
Justice. 

Salaries   of   justices. 

Clerk,   marshal,   and   reporter. 

The  clerk  to  give  bond. 

Deputies    of   the   clerk. 

Records  of  the  old  court  of  ap- 
peals. 

Tables   of  fees. 

Marshal   of  the  Supreme  Court. 

Duties   of   the    reporter. 

Reporter's  salary  and  allow- 
ances. 

Distribution   of   reports   and   di- 


Additional  reports  and  digests; 
limitation  upon  cost;  esti- 
mates to  be  submitted  to  Con- 
gress annually. 

Distribution  of  Federal  Report- 
er, etc.,  and  Digests. 

Terms. 

Adjournment  for  want  of  a 
quorum. 

Certain  orders  made  by  less  than 
quorum. 

Original   disposition. 

Writs  of  prohibition  and  man- 
damus. 

Issues  of  fact. 

Appellate    jurisdiction. 

Writs  of  error  from  judgments 
and  decrees  of  state  courts. 

Appeals  and  writs  of  error 
from  United  States  district 
courts. 


Sec. 

239.  Circuit    court    of    appeals    may 

certify  questions  to  Supreme 
Court  for  instructions. 

240.  Certiorari    to    circuit    court    of 

appeals. 

241.  Appeals   and   writs   of   error   in 

other  cases. 

242.  Appeals  from  court  of  claims. 

243.  Time    and    manner    of    appeals 

from  the  court  of  claims. 

244.  Writs  of  error  and  appeals  from 

supreme  court  of,  and  United 
States  district  court  for,  Porto 
Rico. 

245.  Writs  of  error  and  appeals  from 

the  supreme  courts  of  Arizo- 
na and  New  Mexico. 

246.  W7rits  of  error  and  appeals  from 

the  supreme  court  of  Hawaii. 

247.  Appeals  and  writs  of  error  from 

the  district  court  for  Alaska 
direct  to  Supreme  Court  in 
certain  cases. 

248.  Appeals  and  writs  of  error  from 

the  supreme  court  of  the 
Philippine  Islands. 

249.  Appeals  and  writs  of  error  when 

a  territory  becomes  a  state. 

250.  Appeals  and  writs  of  error  from 

the  court  of  appeals  of  the 
District  of  Columbia. 

251.  Certiorari   to    court   of   appeals, 

District  of  Columbia. 

252.  Appellate  jurisdiction  under  the 

bankruptcy  act. 

253.  Precedence  of  writs  of  error  to 

state  courts. 

254.  Cost    of    printing    records. 

255.  Women     may     be    admitted    to 

practice. 


740  APPENDIX 

§  215.  The  Supreme  Court  of  the  United  States  shall  consist  of  a  Chief 
Justice  of  the  United  States  and  eight  associate  justices,  any  six  of  whom 
shall  constitute  a  quorum. 

Annotated,  our  §  2450  note  a. 

§  216.  The  associate  justices  shall  have  precedence  according  to  the  dates 
of  their  commissions,  or,  when  the  commissions  of  two  or  more  of  them 
bear  the  same  date,  according  to  their  ages. 

Annotated,  our  §  2450  note  b. 

§  217.  In  case  of  a  vacancy  in  the  office  of  Chief  Justice,  or  of  his  inability 
to  perform  the  duties  and  powers  of  his  office,  they  shall  devolve  upon  the 
associate  justice  who  is  first  in  precedence,  until  such  disability  is  removed, 
or  another  Chief  Justice  is  appointed  and  duly  qualified.  This  provision 
shall  apply  to  every  associate  justice  who  succeeds  to  the  office  of  Chief 
Justice. 

Annotated,  our  §  2450  note  c. 

§  218.  The  Chief  Justice  of  the  Supreme  Court  of  the  United  States  shall 
receive  the  sum  of  fifteen  thousand  dollars  a  year,  and  the  justices  thereof 
shall  receive  the  sum  of  fourteen  thousand  five  hundred  dollars  a  year  each, 
to  be  paid  monthly. 

Annotated,  our  §  2450  note  d. 

§  219.  The  Supreme  Court  shall  have  power  to  appoint  a  clerk  and  a  mar- 
shal for  said  court,  and  a  reporter  of  its  decisions. 

Annotated,  our  §  2451  note  e.  Referred  to  in  our  §  2453. 
§  220.  The  clerk  of  the  Supreme  Court  shall,  before  he  enters  upon  the 
execution  of  his  office,  give  bond,  with  sufficient  sureties,  to  be  approved  by 
the  court,  to  the  United  States,  in  the  sum  of  not  less  than  five  thousand 
and  not  more  than  twenty  thousand  dollars,  to  be  determined  and  regulated 
by  the  Attorney  General,  faithfully  to  discharge  the  duties  of  his  office,  and 
seasonably  to  record  the  decrees,  judgments,  and  determinations  of  the  court. 
The  Supreme  Court  may  at  any  time,  upon  the  motion  of  the  Attorney  Gen- 
eral, to  be  made  upon  thirty  days'  notice,  require  a  new  bond,  or  a  bond 
for  an  increased  amount  within  the  limits  above  prescribed :  and  the  failure 
of  the  clerk  to  execute  the  same  shall  vacate  his  office.  All  bonds  given  by 
the  clerk  shall,  after  approval,  be  recorded  in  his  office,  and  copies  thereof 
from  the  records,  certified  by  the  clerk  under  seal  of  the  court,  shall  be 
competent  evidence  in  any  court.  The  original  bonds  shall  be  filed  in  the 
Department  of  Justice. 

Annotated,  our  §  2451  note  f. 

§  221.  One  or  more  deputies  of  the  clerk  of  the  Supreme  Court  may  be 
appointed  by  the  court  on  the  application  of  the  clerk,  and  may  be  removed 
at  the  pleasure  of  the  court.  In  case  of  the  death  of  the  clerk,  his  deputy 
or  deputies  shall,  unless  removed,  continue  in  office  and  perform  the  duties 
of  the  clerk  in  his  name  until  a  clerk  is  appointed  and  qualified ;  and  for 
the  defaults  or  misfeasances  in  office  of  any  such  deputy,  whether  in  the 
lifetime  of  the  clerk  or  after  his  death,  the  clerk,  and  his  estate,  and  the 
sureties  on  his  official  bond,  shall  be  liable;  and  his  executor  or  administrator 
shall  have  such  remedy  for  any  such  defaults  or  misfeasances  committed  after 
his  death  as  the  clerk  would  be  entitled  to  if  the  same  had  occurred  in  his 
lifetime. 

Annotated,  our  §  2452  note  g. 


JUDICIAL    CODE  741 

§  222.  The  records  and  proceedings  of  the  court  of  appeals,  appointed 
previous  to  the  adoption  of  the  present  Constitution,  shall  be  kept  in  the 
office  of  the  clerk  of  the  Supreme  Court,  who  shall  give  copies  thereof  to  any 
person  requiring  and  paying  for  them,  in  the  manner  provided  by  law  for 
giving  copies  of  the  records  and  proceedings  of  the  Supreme  Court;  and  such 
copies  shall  have  like  faith  and  credit  with  all  other  proceedings  of  said 
*  court. 

36  Stat.  at  L.  1153,  Comp.  St.  1911,  p.  222,  1912  Supp.  F.  S.  A.  v.  1,  p. 
266.  Re-enacting  §  679,  R.  S.,  Rose's  Code,  §  380,  Comp.  St.  1901,  p. 
559,  4  F.  S.  A.  435,  which  section  is  repealed  by  §  297,  Judicial  Code. 

§  223.  The  Supreme  Court  is  authorized  and  empowered  to  prepare  the 
tables  of  fees  to  be  charged  by  the  clerk  thereof. 

36  Stat.  at  L.  1153,  Comp.  St.  1911,  p.  222,  1912  Supp.  F.  S.  A.  v.  1,  p. 
220.  Re-enacting  part  of  act  of  March  3,  1883,  ch.  143,  22  Stat.  at  L.  631, 
Rose's  Code,  §§  576,  707,  Foster's  Fed.  Prac.  (4th  ed.)  p.  1045,  Comp.  St. 
1901,  p.  650,  4  F.  S.  A.  139. 

§  224.  The  marshal  is  entitled  to  receive  a  salary  at  the  rate  of  four 
thousand  five  hundred  dollars  a  year.  He  shall  attend  the  court  at  its 
sessions;  shall  serve  and  execute  all  process  and  orders  issuing  from  it, 
or  made  by  the  Chief  Justice  or  an  associate  justice  in  pursuance  of  law; 
and  shall  take  charge  of  all  property  of  the  United  States  used  by  the  court 
or  its  members.  With  the  approval  of  the  Chief  Justice  he  may  appoint 
assistants  and  messengers  to  attend  the  court,  with  the  compensation  allowed 
to  officers  of  the  House  of  Representatives  of  similar  grade. 
Annotated,  our  §  2453  note  i. 

§  225.  The  reporter  shall  cause  the  decisions  of  the  Supreme  Court  to  be 
printed  and  published  within  eight  months  after  they  are  made;  and  within 
the  same  time  he  shall  deliver  three  hundred  copies  of  the  volumes  of  said 
reports  to  the  Attorney  General.  The  reporter  shall,  in  any  year  when  he 
is  so  directed  by  the  court,  cause  to  be  printed  and  published  a  second  volume 
of  said  decisions,  of  which  he  shall  deliver  a  like  number  of  copies  in  like 
manner  and  time. 

36  Stat.  at  L.  1153,  Comp.  St.  1911,  p.  223,  1912  Supp.  F.  S.  A.  v.  1,  p. 
226.  Re-enacting  §  681,  R.  S.,  Rose's  Code,  §  681,  Comp.  St.  1901,  p. 
5(50,  6  F.  S.  A.  767,  which  section  is  repealed  by  §  2'97,  Judicial  Code. 

§  226.  The  reporter  shall  be  entitled  to  receive  from  the  Treasury  an 
annual  salary  of  four  thousand  five  hundred  dollars  when  his  report  of 
said  decisions  constitutes  one  volume,  and  an  additional  sum  of  one  thou- 
sand two  hundred  dollars  when,  by  direction  of  the  court,  he  causes  to  be 
printed  and  published  in  any  year  a  second  volume;  and  said  reporter  shall 
be  annually  entitled  to  clerk  hire  in  the  sum  of  one  thousand  two  hundred 
dollars,  and  to  office  rent,  stationery,  and  contingent  expenses  in  the  sum 
of  six  hundred  dollars:  Provided,  That  the  volumes  of  the  decisions  of  the 
court  heretofore  published  shall  be  furnished  by  the  reporter  to  the  public 
at  a  sum  not  exceeding  two  dollars  per  volume,  and  those  hereafter  published 
at  a  sum  not  exceeding  one  dollar  and  seventy-five  cents  per  volume;  and  the 


742  APPENDIX 

number  of  volumes  now  required  to  be  delivered  to  the  Attorney  General 
shall  be  furnished  by  the  reporter  without  any  charge  therefor.  Said  salary 
and  compensation,  respectively,  shall  be  paid  only  when  he  causes  such  de- 
cisions to  be  printed,  published,  and  delivered  within  the  time  and  in  the 
manner  prescribed  by  law,  and  upon  the  condition  that  the  volumes  of  said 
reports  shall  be  sold  by  him  to  the  public  for  a  price  not  exceeding  one 
dollar  and  seventy-five  cents  a  volume. 

36  Stat.  at  L.  1153,  Comp.  St.  1911,  p.  223,  1912  Supp.  F.  S.  A.  v.  1,  p. 
220.  Drawn  from  §  (582.  R.  S.,  Comp.  St.  1901,  p.  561,  6  F.  S.  A.  767, 
which  section  is  repealed  by  §  297,  Judicial  Code. 

§  227.  The  Attorney  General  shall  distribute  copies  of  the  Supreme 
Court  reports,  as  follows:  To  the  President,  the  justices  of  the  Supreme 
Court,  the  judges  of  the  commerce  court,  the  judges  of  the  court  of  customs 
appeals,  the  judges  of  the  circuit  courts  of  appeals,  the  judges  of  the  district 
courts,  the  judges  of  the  court  of  claims,  the  judges  of  the  court  of  appeals 
and  of  the  supreme  court  of  the  District  of  Columbia,  the  judges  of  the 
several  territorial  courts,  the  Secretary  of  State,  the  Secretary  of  the  Treas- 
\iry,  the  Secretary  of  War,  the  Secretary  of  the  Navy,  the  Secretary  of  the 
Interior,  the  Postmaster  General,  the  Attorney  General,  the  Secretary  of 
Agriculture,  the  Secretary  of  Commerce  and  Labor,  the  Solicitor  General, 
the  Assistant  to  the  Attorney  General,  each  Assistant  Attorney  General, 
each  United  States  district  attorney,  each  Assistant  Secretary  of  each  Exec- 
utive Department,  the  Assistant  Postmasters  General,  the  Secretary  of  the 
Senate  for  the  use  of  the  Senate,  the  Clerk  of  the  House  of  Representatives  for 
the  use  of  the  House  of  Representatives,  the  governors  of  the  territories,  the 
Solicitor  for  the  Department  of  State,  the  Treasurer  of  the  United  States, 
the  Solicitor  of  the  Treasury,  the  Register  of  the  Treasury,  the  Comptroller 
of  the  Treasury,  the  Comptroller  of  the  Currency,  the  Commissioner  of  In- 
ternal Revenue,  the  Director  of  the  Mint,  each  of  the  six  Auditors  in  the 
Treasury  Department,  the  Judge  Advocate  General,  War  Department,  the 
Paymaster  General,  War  Department,  the  Judge  Advocate  General,  Navy 
Department,  the  Commissioner  of  Indian  Affairs,  the  Commissioner  of  Pen- 
sions, the  Commissioner  of  the  General  Land  Office,  the  Commissioner  of 
Patents,  the  Commissioner  of  Education,  the  Commissioner  of  Labor,  the 
Commissioner  of  Navigation,  the  Commissioner  of  Corporations,  the  Commis- 
sioner General  of  Immigration,  the  Chief  of  the  Bureau  of  Manufactures,  the 
Director  of  the  Geological  Survey,  the  Director  of  the  Census,  the  Forester. 
Department  of  Agriculture,  the  Purchasing  Agent,  Postoffice  Department,  the 
Interstate  Commerce  Commission,  the  Clerk  of  the  Supreme  Court  of  the 
United  States,  the  Marshal  of  the  Supreme  Court  of  the  United  States,  the 
Attorney  for  the  District  of  Columbia,  the  Naval  Academy  at  Annapolis,  the 
Military  Academy  at  West  Point,  and  the  heads  of  such  other  executive 
offices  as  may  be  provided  by  law,  of  equal  grade  with  any  of  said  offices, 
each  one  copy;  to  the  Law  Library  of  the  Supreme  Court,  twenty-five  copies: 
to  the  Law  Library  of  the  Department  of  the  Interior,  two  copies;  to  the 
Law  Library  of  the  Department  of  Justice,  two  copies:  to  the  Secretary  of 
the  Senate  for  the  use  of  the  committees  of  the  Senate,  twenty-five  copies; 
to  the  Clerk  of  the  House  of  Representatives  for  the  use  of  the  committees 
of  the  House,  thirty  copies;  to  the  Marshal  of  the  Supreme  Court  of  the 


JUDICIAL    CODE  743 

United  States,  as  custodian  of  the  public  property  used  by  the  court,  for  the 
use  of  the  justices  thereof  in  the  conference  room,  robing  room,  and  court 
room,  three  copies;  to  the  Secretary  of  War  for  the  use  of  the  proper  courts 
and  officers  of  the  Philippine  Islands  and  for  the  headquarters  of  military 
departments  in  the  United  States,  twelve  copies;  and  to  each  of  the  places 
where  district  courts  of  the  United  States  are  now  holden,  including  Hawaii, 
and  Porto  Rico,  one  copy.  He  shall  also  distribute  one  complete  set  of 
said  reports,  and  one  set  of  the  digests  thereof,  to  such  executive  officers 
as  are  entitled  to  receive  said  reports  under  this  section  and  have  not  already 
received  them,  to  each  United  States  judge  and  to  eacli  United  States  district 
attorney  who  has  not  received  a  set,  to  each  of  the  places  where  district  courts 
are  now  held  to  which  said  reports  have  not  been  distributed,  and  to  each  of 
the  places  at  which  a  district  court  may  hereafter  be  held,  the  edition  of  said 
reports  and  digests  to  be  selected  by  the  judge  or  officer  receiving  them.  No 
distribution  of  reports  and  digests  under  this  section  shall  be  made  to  any 
place  where  the  court  is  held  in  a  building  not  owned  by  the  United  States, 
unless  there  be  at  such  place  a  United  States  officer  to  whose  responsible 
custody  they  can  be  committed.  The  clerks  of  said  courts  (except  the 
Supreme  Court)  shall  in  all  cases  keep  said  reports  and  digest  for  the 
use  of  the  courts  and  of  the  officers  thereof.  Such  reports  and  digest  shall 
remain  the  property  of  the  United  States,  and  shall  be  preserved  by  the 
officers  above  named,  and  by  them  turned  over  to  their  successors  in  office. 

36  Stat.  at  L.  1154,  Comp.  St.  1911,  p.  223,  1912  Supp.  F.  S.  A.  v.  1,  p. 

227.  Drawn  from   §   683.     R.   S.  Comp.   St.   1901,  p.   561,   6  F.   S.  A.      768, 
as  amended  by  act  of  Feb.  12,  1889,  ch.  135,  25  Stat.  at  L.  661,  Comp.  St. 
1901,  p.  562,  6  F.  S.  A.  769,  which  sections  are  repealed  by  §  297,  Judicial 
Code. 

§  228.  The  publishers  of  the  decisions  of  the  Supreme  Court  shall  deliver 
to  the  Attorney  General,  in  addition  to  the  three  hundred  copies  delivered 
by  the  reporter,  such  number  of  copies  of  each  report  heretofore  published, 
as  the  Attorney  General  may  require,  for  which  he  shall  pay  not  more 
than  two  dollars  per  volume,  and  such  number  of  copies  of  each  report 
hereafter  published  as  he  may  require,  for  which  he  shall  pay  not  more 
than  one  dollar  and  seventy-five  cents  per  volume.  The  Attorney  General 
shall  include  in  his  annual  estimates  submitted  to  Congress,  an  estimate  for 
the  current  volumes  *of  such  reports,  and  also  for  the  additional  sets  of 
reports  and  digests  required  for  distribution  under  the  section  last  preceding. 

36  Stat.  at  L.  1155,  Comp.  St.  1911,  p.  225,  1912  Supp.  F.  S.  A.  v.  1,  p. 

228.  Drawn  from  act  of  July  1,  1902,  32  Stat.  at  L.  631,  Comp.  St.  1901,  p. 
562,  6  F.  S.  A.  771. 

§  229.  The  Attorney  General  is  authorized  to  procure  complete  sets  of  the 
Federal  Reporter  or,  in  his  discretion,  other  publication  containing  the  de- 
cisions of  the  circuit  courts  of  appeals,  circuits  courts,  and  district  courts, 
and  digests  thereof,  and  also  future  volumes  of  the  same  as  issued,  and  dis- 
tribute a  copy  of  each  such  reports  and  digests  to  each  place  where  a  circuit 
court  of  appeals,  or  a  district  court,  is  now  or  may  hereafter  regularly 
be  held,  and  to  the  Supreme  Court  of  the  United  States,  the  court  of  claims, 


744  APPENDIX 

the  court  of  customs  appeals,  the  commerce  court,  the  court  of  appeals  and 
the  supreme  court  of  the  District  of  Columhia,  the  Attorney  General,  the 
Solicitor  General,  the  Solicitor  of  the  Treasury,  the  Assistant  Attorney  Gen- 
eral for  the  Department  of  the  Interior,  the  Commissioner  of  Patents,  and 
the  Interstate  Commerce  Commission ;  and  to  the  Secretary  of  the  Senate, 
for  the  use  of  the  Senate,  and  to  the  Clerk  of  the  House  of  Representatives, 
for  the  use  of  the  House  of  Representatives,  not  more  than  three  sets  each. 
Whenever  any  such  court  room,  office,  or  officer  shall  have  a  partial  or 
complete  set  of  any  such  reports,  or  digests,  already  purchased  or  owned 
by  the  United  States,  the  Attorney  General  shall  distribute  to  such  court 
room,  office,  or  officer,  only  sufficient  volumes  to  make  a  complete  set  thereof. 
Xo  distribution  of  reports  or  digests  under  this  section  shall  be  made  to 
any  place  where  the  court  is  held  in  a  building  not  owned  by  the  United 
States,  unless  there  be  at  such  place  a  United  States  officer  to  whose  re- 
sponsible custody  they  can  be  committed.  The  clerks  of  the  courts  (except 
the  Supreme  Court)  to  which  the  reports  and  digests  are  distributed  under 
this  section,  shall  keep  such  reports  and  digests  for  the  use  of  the  courts 
and  the  officers  thereof.  All  reports  and  digests  distributed  under  the  pro- 
visions of  this  section  shall  be  and  remain  the  property  of  the  United  States 
and,  before  distribution,  shall  be  plainly  marked  on  their  covers  with  the 
words  "The  Property  of  the  United  States,"  and  shall  be  transmitted  by  the 
officers  receiving  them  to  their  successors  in  office.  Not  to  exceed  two  dollars 
per  volume  shall  be  paid  for  the  back  and  current  volumes  of  the  Federal  Re- 
porter or  other  publication  purchased  under  the  provisions  of  this  section, 
and  not  to  exceed  five  dollars  per  volume  for  the  digest,  the  said  money  to 
be  disbursed  under  the  direction  of  the  Attorney  General;  and  the  Attorney 
General  shall  include  in  his  annual  estimates  submitted  to  Congress,  an 
estimate  for  the  back  and  current  volumes  of  such  reports  and  digests,  the 
distribution  of  which  is  provided  for  in  this  section. 

36  Stat.  at  L.  1155,  Comp.  St.  1911,  p.  225,  1912  Supp.  F.  S.  A.  v.  1,  p. 
228.  New  legislation. 

§  230.  The  Supreme  Court  shall  hold  at  the  seat  of  government,  one  term 
annually,  commencing  on  the  second  Monday  in  October,  and  such  adjourned 
or  special  term  as  it  may  find  necessary  for  the  dispatch  of  business. 
Annotated,  our  §  2456  note  k.  »<*•*, 

§  231.  If,  at  any  session  of  the  Supreme  Court,  a  quorum  does  not  attend 
on  the  day  appointed  for  holding  it,  the  justices  who  do  attend  may  adjourn 
the  court  from  day  to  day  for  twenty  days  after  said  appointed  time,  unless 
there  be  sooner  a  quorum.  If  a  quorum  does  not  attend  within  said  twenty 
days  the  business  of  the  court  shall  be  continued  over  till  the  next  appointed 
session;  and  if,  during  a  terra,  after  a  quorum  has  assembled,  less  than  that 
number  attend  on  any  day,  the  justices  attending  may  adjourn  the  court 
from  day  to  day  until  there  is  a  quorum,  or  may  adjourn  without  day. 
Annotated,  our  §  2457  note  1. 

§  232.  The  justices  attending  at  any  term,  when  less  than  a  quorum  is 
present,  may,  within  the  twenty  days  mentioned  in  the  preceding  section, 
make  all  necessary  orders  touching  any  suit,  proceeding,  or  process,  depending 


JUDICIAL    CODE  745 

in  or   returned  to  the  court,   preparatory  to  the  hearing,   trial,  or  decision 
thereof. 

Annotated,  our  §  2457  note  m. 

§  233.  The  Supreme  Court  shall  have  exclusive  jurisdiction  of  all  controver- 
sies of  a  civil  nature  where  a  state  is  a  party,  except  between  a  state  and 
its  citizens,  or  between  a  state  and  citizens  of  other  states,  or  aliens,  in  which 
latter  cases  it  shall  have  original,  but  not  exclusive,  jurisdiction.  And  it 
shall  have  exclusively  all  such  jurisdiction  of  suits  or  proceedings  against 
ambassadors  or  other  public  ministers,  or  their  domestics  or  domestic  serv- 
ants, as  a  court  of  law  can  have  consistently  with  the  law  of  nations ;  and 
original,  but  not  exclusive,  jurisdiction,  of  all  suits  brought  by  ambassadors, 
or  other  public  ministers,  or  in  which  a  consul  or  vice  consul  is  a  party. 
Annotated,  our  §  2458  note  n. 

§  234.  The  Supreme  Court  shall  have  power  to  issue  writs  of  prohibition 
to  the  district  courts,  when  proceeding  as  courts  of  admiralty  and  maritime 
jurisdiction;  and  writs  of  mandamus,  in  cases  warranted  by  the  principles 
and  usages  of  law,  to  any  courts  appointed  under  the  authority  of  the  United 
States,  or  to  persons  holding  office  under  the  authority  of  the  United  States, 
where  a  state,  or  an  ambassador,  or  other  public  minister,  or  a  counsel,  or 
vice  consul  is  a  party. 

Annotated,  our  §  2021  note  o.    Referred  to  in  our  §  2459. 

§  235.  The   trial   of   issues   of   fact   in   the   Supreme   Court,   in  all  actions 
at  law  against  citizens  of  the  United  States,  shall  be  by  jury. 
Annotated,  one  §  2458  note  o. 

§  236.  The  Supreme  Court  shall  have  appellate  jurisdiction  in  the  cases 
hereinafter  specially  provided  for. 

36  Stat.  at  L.  1156,  Comp.  St.  1911,  p.  227,  1912  Supp.  F.  S.  A-.  v.  1,  p. 
2:-J().  Re-enacting  §  690,  R.  S.,  Rose's  Code,  §  37,  Comp.  St.  1901,  p.  566, 
4  F.  S.  A.  443,  which  section  is  repealed  by  §  297,  Judicial  Code. 

§  237.  A  final  judgment  or  decree  in  any  suit  in  the  highest  court  of  a 
state  in  which  a  decision  in  the  suit  could  be  had,  where  is  drawn  in  question 
the  validity  of  a  treaty  or  statute  of,  or  an  authority  exercised  under,  the 
United  States,  and  the  decision  is  against  their  validity;  or  where  is  drawn 
in  question  the  validity  of  a  statute  of,  or  an  authority  exercised  under  any 
state,  on  the  ground  of  their  being  repugnant  to  the  Constitution,  treaties, 
or  laws  of  the  United  States,  and  the  decision  is  in  favor  of  their  validity: 
or  where  any  title,  right,  privilege,  or  immunity  is  claimed  under  the  Con- 
stitution, or  any  treaty  or  statute  of,  or  commission  held  or  authority  ex- 
ercised under,  the  United  States,  and  the  decision  is  against  the  title,  right, 
privilege,  or  immunity,  especially  set  up  or  claimed,  by  either  party,  under 
such  Constitution,  treaty,  statute,  commission,  or  authority,  may  be  re- 
examined  and  reversed  or  affirmed  in  the  Supreme  Court  upon  a  writ  of 
error.  The  writ  shall  have  the  same  effect  as  if  the  judgment  or  decree 
complained  of  had  been  rendered  or  passed  in  a  court  of  the  United  States. 
The  Supreme  Court  may  reverse,  modify,  or  affirm  the  judgment  or  decree  of 
such  state  court,  and  may,  at  their  discretion,  award  execution  or  remand 
the  same  to  the  court  from  which  it  was  removed  by  the  writ. 
Annotated,  our  §  331  note  a. 

§  238.  Appeals  and  writs  of  error  may  be  taken  from  the  district  courts, 


746  APPENDIX 

including  the  United  States  district  court  for  Hawaii,  direct  to  the  Supreme 
Court  in  the  following  cases:  In  any  case  in  which  the  jurisdiction  of  the 
court  is  in  issue,  in  which  case  the  question  of  jurisdiction  alone  shall  be 
certified  to  the  Supreme  Court  from  the  court  below  for  decision;  from  the 
final  sentences  and  decrees  in  prize  causes;  in  any  case  that  involves  the 
construction  or  application  of  the  Constitution  of  the  United  States;  in  any 
case  in  which  the  constitutionality  of  any  law  of  the  United  States,  or  the 
validity  or  construction  of  any  treaty  made  under  its  authority,  is  drawn 
in  question;  and  in  any  case  in  which  the  Constitution  or  law  of  a  state 
is  claimed  to  be  in  contravention  of  the  Constitution  of  the  United  States. 

Annotated,  our  §  2001  note  a. 

§  239.  In  any  case  within  its  appellate  jurisdiction,  as  defined  in  section 
one  hundred  and  twenty-eight,  the  circuit  court  of  appeals  at  any  time  may 
certify  to  the  Supreme  Court  of  the  United  States  any  questions  or  propo- 
sitions of  law  concerning  which  it  desires  the  instruction  of  that  court  for 
its  proper  decision;  and  thereupon  the  Supreme  Court  may  either  give  its 
instruction  on  the  questions  and  propositions  certified  to  it,  which  shall  be 
binding  upon  the  circuit  court  of  appeals  in  such  case,  or  it  may  require 
that  the  whole  record  and  cause  be  sent  up  to  it  for  its  consideration,  and 
thereupon  shall  decide  the  whole  matter  in  controversy  in  the  same  manner 
as  if  it  had  been  brought  there  for  review  by  writ  of  error  or  appeal. 

Annotated,  our  §  840  note  a.  Referred  to  in  our  §§  2011,  2075. 
§  240.  In  any  case,  civil  or  criminal,  in  which  the  judgment  or  decree 
of  the  circuit  court  of  appeals  is  made  final  by  the  provisions  of  this  Title, 
it  shall  be  competent  for  the  Supreme  Court  to  require,  by  certiorari  or 
otherwise,  upon  the  petition  of  any  party  thereto,  any  such  case  to  be  cer- 
tified to  the  Supreme  Court  for  its  review  and  determination,  with  the  same 
power  and  authority  in  the  case  as  if  it  had  been  carried  by  appeal  or 
writ  of  error  to  the  Supreme  Court. 

Annotated,  our  §  840  note  a.  Referred  to  in  our  §§  2010,  2074. 
§  241.  In  any  case  in  which  the  judgment  or  decree  of  the  circuit  court 
of  appeals  is  not  made  final  by  the  provisions  of  this  Title,  there  shall  be 
of  right  an  appeal  or  writ  of  error  to  the  Supreme  Court  of  the  United  States 
where  the  matter  in  controversy  shall  exceed  one  thousand  dollars,  besides 
costs. 

Annotated,  our  §  2009  note  b. 

§  242.  An  appeal  to  the  Supreme  Court  shall  be  allowed  on  behalf  of  the 
United  States,  from  all  judgments  of  the  court  of  claims  adverse  to  the 
United  States,  and  on  behalf  of  the  plaintiff  in  any  case  where  the  amount 
in  controversy  exceeds  three  thousand  dollars,  or  where  his  claim  is  for- 
feited to  the  United  States  by  the  judgment  of  said  court  as  provided  in 
section  one  hundred  and  seventy-two. 

Annotated,  our  §  2012  note  e. 

§  243.  All  appeals  from  the  court  of  claims  shall  be  taken  within  ninety 
days  after  the  judgment  is  rendered,  and  shall  be  allowed  under  such  regula- 
tions as  the  Supreme  Court  may  direct. 

Annotated,  our  §  2012  note  g. 

§  244.  Writs  of  error  and  appeals  from  the  final  judgments  and  decrees 
of  the  supreme  court  of,  and  the  United  States  district  court  for,  Porto  Rico, 


JUDICIAL    CODE  747 

may  be  taken  and  prosecuted  to  the  Supreme  Court  of  the  United  Statee, 
in  any  case  wherein  is  involved  the  validity  of  any  copyright,  or  in  which 
is  drawn  in  question  the  validity  of  a  treaty  or  statute  of,  or  authority  ex- 
ercised under,  the  United  States,  or  wherein  the  Constitution  of  the  United 
States,  or  a  treaty  thereof,  or  an  act  of  Congress,  is  brought  in  question  and 
the  right  claimed  thereunder  is  denied,  without  regard  to  the  sum  or  value 
of  the  matter  in  dispute;  and  in  all  other  cases  in  which  the  sum  or  value 
of  the  matter  in  dispute,  exclusive  of  costs,  to  be  ascertained  by  the  oath 
of  either  party  or  of  other  competent  witnesses,  exceeds  the  sum  or  value 
of  five  thousand  dollars.  Such  writs  of  error  and  appeals  shall  be  taken 
within  the  same  time,  in  the  same  manner,  and  under  the  same  regulations  as 
writs  of  error  and  appeals  are  taken  to  the  Supreme  Court  of  the  United 
States  from  the  district  courts. 

Annotated,  our  §  2013  note  h.  Referred  to  in  our  §  2077. 
§  245.  Writs  of  error  and  appeals  from  the  final  judgments  and  decrees 
of  the  supreme  courts  of  the  territories  of  Arizona  and  New  Mexico  may 
be  taken  and  prosecuted  to  the  Supreme  Court  of  the  United  States  in  any 
case  wherein  is  involved  the  validity  of  any  copyright,  or  in  which  is  drawn 
in  question  the  validity  of  a  treaty  or  statute  of,  or  authority  exercised 
under,  the  United  States,  without  regard  to  the  sum  or  value  of  the  matter 
in  dispute;  and  in  all  other  cases  in  which  the  sum  or  value  of  the  matter 
in  dispute,  exclusive  of  costs,  to  be  ascertained  by  the  oath  of  either  party 
or  of  other  competent  witnesses,  exceeds  the  sum  or  value  of  five  thousand 
dollars. 

36  Stat.  at  L.  1158,  Comp.  St.  1911,  p.  229,  1912  Supp.  F.  S.  A.  v.  1,  p. 
^3.3.  Drawn  from  §  702,  R.  S.,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  2046,  2062, 
Comp.  St.  1901,  p.  571,  4  F.  S.  A.  459,  and  §§  1  and  2  of  the  act  of  March 
3,  1885,  ch.  355,  23  Stat.  at  L.  443,  Foster's  Fed.  Prac.  (4th  ed.)  pp.  1994-97, 
2045-46,  Comp.  St.  1901,  p.  571,  4  F.  S.  A.  463,  all  of  which  are  repealed 
by  §  297,  Judicial  Code. 

§  246.  Writs  of  error  and  appeals  from  the  final  judgments  and  decrees 
of  the  supreme  court  of  the  territory  of  Hawaii  may  be  taken  and  prosecuted 
to  the  Supreme  Court  of  the  United  States,  within  the  same  time,  in  the 
same  manner,  under  the  same  regulations,  and  in  the  same  classes  of  cases, 
in  which  writs  of  error  and  appeals  from  the  final  judgments  and  decrees 
of  the  highest  court  of  a  state  in  which  a  decision  in  the  suit  could  be  had, 
may  be  taken  and  prosecuted  to  the  Supreme  Court  of  the  United  States 
under  the  provisions  of  section  two  hundred  and  thirty-seven;  and  also  in 
all  cases  wherein  the  amount  involved,  exclusive  of  costs,  to  be  ascertained 
by  the  oath  of  either  party  or  of  other  competent  witnesses,  exceeds  the  sum 
or  value  of  five  thousand  dollars. 

Annotated,  our  §  2014  note  i.    Referred  to  in  our  §  2081. 

§  247.  Appeals  and  writs  of  error  may  be  taken  and  prosecuted  from  final 
judgments  and  decrees  of  the  district  court  for  the  district  of  Alaska  or  for 
any  division  thereof,  direct  to  the  Supreme  Court  of  the  United  States,  in 
the  following  cases:  In  prize  cases;  and  in  all  cases  which  involve  the  con- 
struction or  application  of  the  Constitution  of  the  United  States,  or  in  which 
the  constitutionality  of  any  law  of  the  United  States  or  the  validity  or 


748  AIMM.XDIX 

construction  of  any  treaty  made  under  its  authority  is  drawn  in  question, 
or  in  which  the  Constitution  or  law  of  a  state  is  claimed  to  be  in  contra- 
vention of  the  Constitution  of  the  United  States.  Such  writs  of  error  and 
appeal  shall  be  taken  within  the  same  time,  in  the  same  manner,  and  under 
the  same  regulations  as  writs  of  error  and  appeals  are  taken  from  the  dis- 
trict courts  to  the  Supreme  Court. 

Annotated,  our  §  2015  note  j.     Referred  to  in  our  §  2076. 

§  248.  The  Supreme  Court  of  the  United  States  shall  have  jurisdiction  to 
review,  revise,  reverse,  modify,  or  affirm  the  final  judgments  and  decrees 
of  the  supreme  court  of  the  Philippine  Islands  in  all  actions,  cases,  causes, 
and  proceedings  now  pending  therein  or  hereafter  determined  thereby,  in 
which  the  Constitution,  or  any  statute,  treaty,  title,  right,  or  privilege  of 
the  United  States  is  involved,  or  in  causes  in  which  the  value  in  controversy 
exceeds  twenty-five  thousand  dollars,  or  in  which  the  title  or  possession  of 
real  estate  exceeding  in  value  the  sum  of  twenty-five  thousand  dollars,  to  be 
ascertained  by  the  oath  of  either  party  or  of  other  competent  witnesses,  is 
involved  or  brought  in  question;  and  such  final  judgments  or  decrees  may 
and  can  be  reviewed,  revised,  reversed,  modified,  or  affirmed  by  said  Supreme 
Court  on  appeal  or  writ  of  error  by  the  party  aggrieved,  within  the  same 
time,  in  the  same  manner,  under  the  same  regulations,  and  by  the  same  pro- 
cedure, as  far  as  applicable,  as  the  final  judgments  and  decrees  of  the  district 
courts  of  the  United  States. 

Annotated,  our  §  2016  note  k.    Referred  to  in  our  §  2078. 

§  249.  In  all  cases  where  the  judgment  or  decree  of  any  court  of  a  terri- 
tory might  be  reviewed  by  the  Supreme  Court  on  writ  of  error  or  appeal, 
such  writ  of  error  or  appeal  may  be  taken,  within  the  time  and  in  the  man- 
ner provided  by  law,  notwithstanding  such  territory  has,  after  such  judgment 
or  decree,  been  admitted  as  a  state;  and  the  Supreme  Court  shall  direct  the 
mandate  to  such  court  as  the  nature  of  the  writ  of  error  or  appeal  requires. 
Annotated,  our  §  2017  note  1. 

§  250.  Any  final  judgment  or  decree  of  the  court  of  appeals  of  the  Dis- 
trict of  Columbia  may  be  re-examined  and  affirmed,  reversed,  or  modified  by 
the  Supreme  Court  of  the  United  States,  upon  writ  of  error  or  appeal,  in 
the  following  cases: 

First.  In  cases  in  which  the  jurisdiction  of  the  trial  court  is  in  issue; 
but  when  any  such  case  is  not  otherwise  review-able  in  said  Supreme  Court, 
then  the  question  of  jurisdiction  alone  shall  be  certified  to  said  Supreme 
Court  for  decision. 

Second.      In   prize   cases. 

Third.  In  cases  involving  the  construction  or  application  of  the  Constitu- 
tion of  the  United  States,  or  the  constitutionality  of  any  law  of  the  United 
States,  or  the  validity  or  construction  of  any  treaty  made  under  its  authority. 

Fourth.  In  cases  in  which  the  Constitution,  or  any  law  of  a  state,  is 
claimed  to  be  in  contravention  of  the  Constitution  of  the  United  States. 

Fifth.  In  cases  in  which  the  validity  of  any  authority  exercised  under 
the  United  States,  or  the  existence  or  scope  of  any  power  or  duty  of  an 
officer  of  the  United  States,  is  drawn  in  question. 

Sixth.  In  cases  in  which  the  construction  of  any  law  of  the  United  States 
is  drawn  in  question  by  the  defendant. 


JUDICIAL    CODE  749 

Except  as  provided  in  the  next  succeeding  section,  the  judgments  and 
decrees  of  said  court  of  appeals  shall  be  final  in  all  cases  arising  under 
the  patent  laws,  the  copyright  laws,  the  revenue  laws,  the  criminal  laws, 
and  in  admiralty  cases;  and,  except  as  provided  in  the  next  succeeding  section, 
the  judgments  and  decrees  of  said  court  of  appeals  shall  be  final  in  all 
cases  not  reviewable  as  hereinbefore  provided. 

s\Vrits  of  error  and  appeals  shall  be  taken  within  the  same  time,  in  the 
same  manner,  and  under  the  same  regulations  as  writs  of  error  and  appeals 
are  taken  from  the  circuit  courts  of  appeals  to  the  Supreme  Court  of  the 
United  States. 

Annotated,  our  §  2018  note  m.     Referred  to  in  our  §  2079. 

§  251.  In  any  case  in  which  the  judgment  or  decree  of  said  court  of  appeals 
is  made  final  by  the  section  last  preceding,  it  shall  be  competent  for  the 
Supreme  Court  of  the  United  States  to  require,  by  certiorari  or  otherwise, 
any  such  case  to  be  certified  to  it  for  its  review  and  determination,  with 
the  same  power  and  authority  in  the  case  as  if  it  had  been  carried  by  writ 
of  error  or  appeal  to  said  Supreme  Court.  It  shall  also  be  competent  for 
said  court  of  appeals,  in  any  case  in  which  its  judgment  or  decree  is  made 
final  under  the  section  last  preceding,  at  any  time  to  certify  to  the  Supreme 
Court  of  the  United  States  any  questions  or  propositions  of  law  concerning 
which  it  desires  the  instruction  of  that  court  for  their  proper  decision;  and 
thereupon  the  Supreme  Court  may  either  give  its  instruction  on  the  questions 
•  and  propositions  certified  to  it,  which  shall  be  binding  upon  said  court  of 
appeals .  in  such  case,  or  it  may  require  that  the  whole  record  and  cause  be 
sent  up  to  it  for  its  consideration,  and  thereupon  shall  decide  the  whole 
matter  in  controversy  in  the  same  manner  as  if  it  had  been  brought  there 
for  review  by  writ  of  error  or  appeal. 

Annotated,  our  §  2019  note  n.     Referred  to  in  our  §  2080. 

§  252.  The  Supreme  Court  of  the  United  States  is  hereby  invested  with 
appellate  jurisdiction  of  controversies  arising  in  bankruptcy  proceedings, 
from  the  courts  of  bankruptcy,  from  which  it  has  appellate  jurisdiction  in 
other  cases;  and  shall  exercise  a  like  jurisdiction  from  courts  of  bankruptcy 
not  within  any  organized  circuit  of  the  United  States  and  from  the  su- 
preme court  of  the  District  of  Columbia. 

An  appeal  may  be  taken  to  the  Supreme  Court  of  the  United  States  from 
any  final  decision  of  a  court  of  appeals  allowing  or  rejecting  a  claim  under 
the  laws  relating  to  bankruptcy,  under  such  rules  and  within  such  time  as 
may  be  prescribed  by  said  Supreme  Court,  in  the  following  cases  and  no 
other : 

First.  Where  the  amount  in  controversy  exceeds  the  sum  of  two  thousand 
dollars,  and  the  question  involved  is  one  which  might  have  been  taken  on 
appeal  or  writ  of  error  from  the  highest  court  of  a  state  to  the  Supreme  Court 
of  the  United  States;  or 

Second.  Where  some  justice  of  the  Supreme  Court  shall  certify  that  in 
his  opinion  the  determination  of  the  question  involved  in  the  allowance 
or  rejection  of  such  claim  is  essential  to  a  uniform  construction  of  the  laxvs 
relating  to  bankruptcy  throughout  the  United  States. 

Controversies  may  be  certified  to  the  Supreme  Court  of  the  Unitod  States 
from  other  courts  of  the  United  States,,  and  the  former  court  may  exercise 


750  APPENDIX 

jurisdiction  thereof,  and  may  issue  writs  of  certiorari  pursuant  to  the 
provisions  of  the  United  States  laws  now  in  force  or  such  as  may  be  hereafter 
enacted. 

Annotated,  our  §  2020  note  o. 

§  253.  Cases  on  writ  of  error  to  revise  the  judgment  of  a  state  court  in 
any  criminal  case  shall  have  precedence  on  the  docket  of  the  Supreme  Court, 
of  all  cases  to  which  the  government  of  the  United  States  is  not  a  party, 
excepting  only  such  cases  as  the  court,  in  its  discretion,  may  decide  to  be  of 
public  importance. 

36  Stat.  at  L.  1160,  Comp.  St.  1911,  p.  233,  1912  Supp.  F.  S.  A.  v.  1,  p. 
238.  Re-enacting  §  710,  R.  S.,  Rose's  Code,  §  2041,  Foster's  Fed.  Prac.  (4th 
ed.)  pp.  2004,  2121,  Comp.  St.  1901,  p.  576,  4  F.  S.  A.  490. 

§  254.  There  shall  be  taxed  against  the  losing  party  in  each  and  every 
cause  pending  in  the  Supreme  Court  the  cost  of  printing  the  record  in  such 
case,  except  when  the  judgment  is  against  the  United  States. 

36  Stat.  at  L.  1160,  Comp.  St.  1911,  p.  233,  1912  Supp.  F.  S.  A.  v.  1,  p. 
238.  Drawn  from  sundry  civil  appropriation  act  of  March  3,  1877,  ch.  105, 
19  Stat,  at  L.  344,  2  F.  S.  A.  293.  Cost,  Railroad  Co.  v.  Collector,  96  U.  S. 
594,  24  L.  ed.  825. 

§  255.  Any  woman  who  shall  have  been  a  member  of  the  bar  of  the  high- 
est court  of  any  state  or  territory,  or  of  the  court  of  appeals  of  the  District 
of  Columbia,  for  the  space  of  three  years,  and  shall  have  maintained  a  good 
standing  before  such  court,  and  who  shall  be  a  person  of  good  moral  char- 
acter, shall,  on  motion,  and  the  production  of  such  records,  be  admitted  to 
practice  before  the  Supreme  Court  of  the  United  States. 
Annotated,  our  §  2455  note  j. 

CHAPTER  ELEVEN. 

PBOVISIONS    COMMON    TO    MORE    THAN    ONE    COtJBT. 

Sec.  Sec. 

256.  Cases    in    which    jurisdiction    of       266.  Injunctions   based   upon    alleged 

United   States  courts   shall  be  unconstitutionality     of     state 

exclusive    of    state    courts.  statutes;    when   and  by   whom 

257.  Oath  of  United  States  judges.  may   be  granted. 

258.  Judges  prohibited  from  practic-  26?-  When    suits    ™    equity    may    be 

'    e    law  maintained. 

f     •          268.  Power   to  administer  oaths  and 

259.  Traveling  expenses    etc.,  of  cir-  igh    conte      ts. 

cuit   justices    and    circuit   and       26g    N£w  trials 

district    judges.  270;  power  to  hoid   to   security  foi 

260.  Salary   of   judges   after  resigna-  the   peace   and   good   behavior. 

tion.  271.  Power  to  enforce  awards  of  for- 

261.  Writs  of  ne  exeat.  eign    consuls,    etc.,    in    certain 

262.  Power   to   issue   writs.  cases. 

263.  Temporary    restraining    orders.  272.  Parties  may  manage  their  caus- 

264.  Injunctions;  in  what  cases  judge  es  personally  or  by  counsel. 

mav  grant.  273.  Certain  officers  forbidden  to  act 

265.  Injunctions  to  stay   proceedings  as  attorneys. 

in   state  courts.  274.  Penalty   for  violating  preceding 

section. 


JUDICIAL    CODE  751 

§  256.  The  jurisdiction  vested  in  the  courts  of  the  United  States  in  tin- 
cases  and  proceedings  hereinafter  mentioned,  shall  be  exclusive  of  the  courts 
of  the  several  states: 

First.  Of  all  crimes  and  offenses  cognizable  under  the  authority  of  the 
United  States. 

Second.  Of  all  suits  for  penalties  and  forfeitures  incurred  under  the 
laws  of  the  United  States. 

Third.  Of  all  civil  causes  of  admiralty  and  maritime  jurisdiction;  saving 
to  suitors,  in  all  cases,  the  right  of  a  common-law  remedy,  where  the  common 
law  is  competent  to  give  it. 

Fourth.  Of  all  seizures  under  the  laws  of  the  United  States,  on  land  or 
on  waters  not  within  admiralty  and  maritime  jurisdiction;  of  all  prizes 
brought  into  the  United  States;  and  of  all  proceedings  for  the  condemnation 
of  property  taken  as  prize. 

Fifth.  Of  all  cases  arising  under  the  patent-right  or  copyright  laws  of  the 
United  States. 

Sixth.    Of  all  matters  and  proceedings  in  bankruptcy. 

Seventh.  Of  all  controversies  of  a  civil  nature,  where  a  state  is  a  party, 
except  between  a  state  and  its  citizens,  or  between  a  state  and  citizens  of 
other  states,  or  aliens. 

Eighth.  Of  all  suits  and  proceedings  against  ambassadors,  or  other  public 
ministers,  or  their  domestics,  or  domestic  servants,  or  against  consuls  or 
vice  consuls. 

Annotated,  our  §  192  note  a.     Referred  to  in  our  §§  359,  360,  364, 
366,  367,  374,  375. 

§  257.  The  justices  of  the  Supreme  Court,  the  circuit  judges,  and  the 
district  judges,  hereafter  appointed,  shall  take  the  following  oath  before  they 

proceed  to  perform  the  duties  of  their  respective  offices:     "I,  , 

do  solemnly  swear  (or  affirm)  that  I  will  administer  justice  without  respect 
to  persons,  and  do  equal  right  to  the  poor  and  to  the  rich,  and  that  I  will 
faithfully  and  impartially  discharge  and  perform  all  the  duties  incumbent 

upon  me  as according  to  the  best  of  my  abilities  and  understanding, 

agreeably  to  the  Constitution  and  laws  of  the  United  States:  So  help  me 
God." 

36  Stat.  at  L.  1161,  Comp.  St.  1911,  p.  234,  1912  Supp.  F.  S.  A.  v.  1,  p. 
240.  Re-enacting  §  712,  R.  S.,  Rose's  Code,  §  466,  Comp.  St.  1901,  p. 
578,  4  F.  S.  A.  497,  which  section  is  repealed  by  §  297,  Judicial  Code. 

§  258.  It  shall  not  be  lawful  for  any  judge  appointed  under  the  authority 
of  the  United  States  to  exercise  the  profession  or  employment  of  counsel 
or  attorney,  or  to  be  engaged  in  the  practice  of  the  law.  Any  person  offend- 
ing against  the  prohibition  of  this  section  shall  be  deemed  guilty  of  a  high 
misdemeanor. 

36  Stat.  at  L.  1161,  Comp.  St.  1911,  p.  234,  1912  Supp.  F.  S.  A.  v.  1,  p. 
240.  Re-enacting  §  713,  R.  S.,  Rose's  Code,  §  476,  Comp.  St.  1901,  p.  578, 
4  F.  S.  A.  497,  which  section  is  repealed  by  §  297,  Judicial  Qode. 

§  259.  The  circuit  justices,  the  circuit  and  district  judges  of  the  United 
States,  and  the  judges  of  the  district  courts  of  the  United  States  in  Alaska, 
Hawaii,  and  Porto  Rico,  shall  each  be  allowed  and  paid  his  necessary  ex- 


752  APPENDIX 

penses  of  travel,  and  his  reasonable  expenses  (not  to  exceed  ten  dollars  per 
day)  actually  incurred  for  maintenance,  consequent  upon  his  attending  court 
or  transacting  other  official  business  in  pursuance  of  law  at  any  place  other 
than  his  official  place  of  residence,  said  expenses  to  be  paid  by  the  marshal 
of  the  district  in  which  such  court  is  held  or  official  business  transacted,  upon 
the  written  certificate  of  the  justice  or  judge.  The  official  place  of  residence 
of  each  justice  and  of  each  circuit  judge  while  assigned  to  the  commerce 
court  shall  be  at  Washington;  and  the  official  place  of  residence  of  each 
circuit  and  district  judge,  and  of  each  judge  of  the  district  courts  of  the 
United  States  in  Alaska,  Hawaii,  and  Porto  Rico,  shall  be  at  that  place 
nearest  his  actual  residence  at  which  either  a  circuit  court  of  appeals  or  a 
district  court  is  regularly  held.  Every  such  judge  shall,  upon  his  appoint- 
ment, and  from  time  to  time  thereafter  whenever  he  may  change  his  official 
residence,  in  writing  notify  the  Department  of  Justice  of  his  official  place  of 
residence. 

36  Stat.  at  L.  1161,  Comp.  St.  1911.  p.  234,  1912  Supp.  F.  S.  A.  v.  1,  p. 
240.  Drawn  from  §  554,  R.  S.,  Comp.  St.  1901,  p.  449,  4  F.  S.  A.  217, 
which  section  is  repealed  by  §  297,  Judicial  Code. 

§  260.  When  any  judge  of  any  court  of  the  United  States  appointed  to 
hold  his  office  during  good  behavior  resigns  his  office,  after  having  held  a 
commission  or  commissions  as  judge  of  any  such  court  or  courts  at  least 
ten  years  continuously,  and  having  attained  the  age  of  seventy  years,  he  shall, 
during  the  residue  of  his  natural  life,  receive  the  salary  which  is  payable 
at  the  time  of  his  retirement  for  the  office  that  he  held  at  the  time  of  his 
resignation. 

36  Stat.  at  L.  1161,  Comp.  St.  1911.  p.  235.  1912  Supp.  F.  S.  A.  v.  1,  p. 
•24].  Re-enacting  §  714,  R.  S.,  Rose's  Code,  §  471,  Foster's  Fed.  Prac.  (4th  ed. ) 
p.  68,  Comp.  St.  1901,  p.  576,  4  F.  S.  A.  498,  as  amended  by  act  of  Feb.  15, 
1 !)()!),  ch.  127,  35  Stat.  at  L.  619,  1909  Supp.  F.  S.  A.  294,  which  section  is  re- 
pealed by  §  297,  Judicial  Code.  In  general,  James  v.  United  States,  202 
U.  S.  401,  50  L.  ed.  1079,  26  Sup.  Ct.  Rep.  685. 

§  261.  Writs  of  ne  exeat  may  be  granted  by  any  justice  of  the  Supreme 
Court,  in  cases  where  they  might  be  granted  by  the  Supreme  Court;  and 
by  any  district  judge,  in  cases  where  they  might  be  granted  by  the  district 
court  of  which  he  is  a  judge.  But  no  writ  of  ne  exeat  shall  be  granted  unless 
a  suit  in  equity  is  commenced,  and  satisfactory  proof  is  made  to  the  court 
or  judge  granting  the  same  that  the  defendant  designs  quickly  to  depart 
from  the  United  States. 

Annotated,  our  §  1067  note  n. 

§  262.  The   Supreme   Court   and   the   district   courts   shall   have   power   to 

issue  writs  of  scire  facias.     The  Supreme  Court,  the  circuit  courts  of  appeals. 

and  the  district  courts  shall  have   power  to  issue  all  writs  not  specifically 

provided  for   by   statute,   which   may   be   necessary  for  the  exercise   of   their 

respective  jurisdictions,   and   agreeable  to  the  usages  and  principles  of   law. 

Annotated,  our  §  1054  note  d.     Referred  to  in  our  §§  1068,  2021, 

2201. 

§  2G3.  Whenever  notice  is  given  of  a  motion  for  an  injunction  out  of  a 
district  court,  the  court  or  judge  thereof  may,  if  there  appears  to  be  danger 
of  irreparable  injury  from  delay,  grant  an  order  restraining  the  act  sought 


JUDICIAL    CODE  753 

to  be  enjoined  until  the  decision  upon  the  motion;   and  such  order  may  be 
granted  with  or  without  security,  in  the  discretion  of  the  court  or  judge. 

Annotated,  our  §  1056  note  f. 

§  264.  Writs  of  injunction  may  be  granted  by  any  justice  of  the  Supreme 
court.  But  no  justice  of  the  Supreme  Court  shall  hear  or  allow  any  appli- 
any  judge  of  a  district  court  in  cases  where  they  might  be  granted  by  such 
xourt.  But  no  justice  of  the  Supreme  Court  shall  hear  or  allow  any  appli- 
cation for  an  injunction  or  restraining  order  in  any  cause  pending  in  the 
circuit  to  which  he  is  allotted,  elsewhere  than  within  such  circuit,  or  at  such 
place  outside  of  the  same  as  the  parties  may  stipulate  in  writing,  except 
when  it  can  not  be  heard  by  the  district  judge  of  the  district.  In  case  of 
the  absence  from  the  district  of  the  district  judge,  or  of  his  disability,  any 
circuit  judge  of  the  circuit  in  which  the  district  is  situated  may  grant  an 
injunction  or  restraining  order  in  any  case  pending  in  the  district  court, 
where  the  same  might  be  granted  by  the  district  judge. 

Annotated,  our  §   1055  note  e. 

§  265.  The  writ  of  injunction  shall  not  be  granted  by  any  court  of  the 
United  States  to  stay  proceedings  in  any  court  of  a  state,  except  in  cases 
where  such  injunction  may  be  authorized  by  any  law  relating  to  proceedings 
in  bankruptcy. 

Annotated,  our  §  1062  note  1. 

§  266.  Xo  interlocutory  injunction  suspending  or  restraining  the  enforce- 
ment, operation,  or  execution  of  any  statute  of  a  state  by  restraining  the 
action  of  any  officer  of  such  state  in  the  enforcement  or  execution  of  such 
statute,  shall  be  issued  or  granted  by  any  justice  of  the  Supreme  Court, 
or  by  any  district  court  of  the  United  States,  or  by  any  judge  thereof,  or 
by  any  circuit  judge  acting  as  district  judge,  upon  the  ground  of  the  un- 
constitutionality  of  such  statute,  unless  the  application  for  the  same  shall 
be  presented  to  a  justice  of  the  Supreme  Court  of  the  United  States,  or  to  a 
circuit  or  district  judge,  and  shall  be  heard  and  determined  by  three  judges, 
of  whom  at  least  one  shall  be  a  justice  of  the  Supreme  Court,  or  a  circuit 
judge,  and  the  other  two  may  be  either  circuit  or  district  judges,  and  unless 
a  majority  of  said  three  judges  shall  concur  in  granting  such  application. 
Whenever  such  application  as  aforesaid  is  presented  to  a  justice  to  the  Su- 
preme Court,  or  to  a  judge,  he  shall  immediately  call  to  his  assistance  to 
hear  and  determine  the  application  two  other  judges:  Provided,  hoivever, 
That  one  of  such  three  judges  shall  be  a  justice  of  the  Supreme  Court,  or  a 
circuit  judge.  Said  application  shall  not  be  heard  or  determined  before  at 
least  five  days'  notice  of  the  hearing  has  been  given  to  the  governor  and  to 
the  attorney  general  of  the  state,  and  to  such  other  persons  as  may  be  de- 
fendants in  the  suit:  Provided,  That  if  of  opinion  that  irreparable  loss 
or  damage  would  result  to  the  complainant  unless  a  temporary  restraining 
order  is  granted,  any  justice  of  the  Supreme  Court,  or  any  circuit  or  district 
judge,  may  grant  such  temporary  restraining  order  at  any  time  before  such 
hearing  and  determination  of  the  application  for  an  interlocutory  injunction, 
but  such  temporary  restraining  order  shall  remain  in  force  only  until  the 
hearing  and  determination  of  the  application  for  an  interlocutory  injunction 
upon  notice  as  aforesaid.  The  hearing  upon  such  application  for  an  inter- 
locutory injunction  shall  be  given  precedence  and  shall  be  in  every  way  ex- 
Montg.  —48. 


754  APPENDIX 

pedited  and  be  assigned  for  a  hearing  at  the  earliest  practicable  day  after 
the  expiration  of  the  notice  hereinbefore  provided  for.  An  appeal  may  be 
taken  direct  to  the  Supreme  Court  of  the  United  States  from  the  order  grant- 
ing or  denying,  after  notice  and  hearing,  an  interlocutory  injunction  in  such 
case. 

As  amended,  Act  March  4,  1913,  ch.  160.    See  our  §  1063. 
§  267.  Suits  in  equity  shall  not  be  sustained  in  any  court  of  the  United 
States  in  any  case  where  a  plain,  adequate,  and  complete  remedy  may  be  had 
at  law. 

36  Stat.  at  L.  1163.  Comp.  St.  1911.  p.  237.  1912  Supp.  F.  S.  A.  v.  1.  p. 
243.  Re-enacting  §  723,  R.  S.  Rose's  Code,  §  935,  Foster's  Fed.  Prac.  (4th  ed.) 
pp.  9,  729,  Comp.  St.  1901,  p.  583,  4  F.  S.  A.  530,  which  section  id  repealed 
by  §  297,  Judicial  Code.  In  general,  Baum  v.  Longwell,  200  Fed.  450. 

§  268.  The  said  courts  shall  have  power  to  impose  and  administer  all 
necessary  oaths,  and  to  punish,  by  fine  or  imprisonment,  at  the  discretion  of 
the  court,  contempts  of  their  authority:  Provided,  That  such  power  to 
punish  contempts  shall  not  be  construed  to  extend  to  any  cases  except  the 
misbehavior  of  any  person  in  their  presence,  or  so  near  thereto  as  to  ob- 
struct the  administration  of  justice,  the  misbehavior  of  any  of  the  officers 
of  said  courts  in  their  official  transactions,  and  the  disobedience  or  resist- 
ance by  any  such  officer,  or  by  any  party,  juror,  witness,  or  other  person  to 
any  lawful  writ,  process,  order,  rule,  decree,  or  command  of  the  said  courts. 
Annotated  §  487  note  a.  Referred  to  in  our  §  1069. 

§  269.  All   of   the   said   courts   shall   have   power  to  grant   new   trials,   in 
cases  where  there  has  been  a  trial  by  jury,  for  reasons  for  which  new  trials 
have  usually  been  granted  in  the  courts  of  law. 
Annotated,  our  §  764  note  a. 

§  270.  The  judges  of  the  Supreme  Court  and  of  the  circuit  courts  of  appeals 
and  district  courts,  United  States  commissioners,  and  the  judges  and  other 
magistrates  of  the  several  States,  who  are  or  may  be  authorized  by  law 
to  make  arrests  for  offenses  against  the  United  States,  shall  have  the  like 
authority  to  hold  to  security  of  the  peace  and  for  good  behavior,  in  cases  aris- 
ing under  the  Constitution  and  laws  of  the  United  States,  as  may  be  lawfully 
exercised  by  any  judge  or  justice  of  the  peace  of  the  respective  states,  in 
cases  cognizable  before  them. 

Annotated,  our  §  2128  note  m. 

§  271.  The  district  courts  and  the  United  States  commissioners  shall 
have  power  to  carry  into  effect,  according  to  the  true  intent  and  meaning 
thereof,  the  award  or  arbitration  or  decree  of  any  consul,  vice  consul,  or 
commercial  agent  of  any  foreign  nation,  made  or  rendered  by  virtue  of  au- 
thority conferred  on  him  as  such  consul,  vice  consul,  or  commercial  agent, 
to  sit  as  judge  or  arbitrator  in  such  differences  as  may  arise  between  the  cap- 
tains and  crews  of  the  vessels  belonging  to  the  nation  whose  interests  are 
committed  to  his  charge,  application  for  the  exercise  of  such  power  being 
first  made  to  such  court  or  commissioner,  by  petition  of  such  consul,  vice 
consul,  or  commercial  agent.  And  said  courts  and  commissioners  may  issue 
all  proper  remedial  process,  mesne  and  final,  to  carry  into  full  effect  such 


JUDICIAL    CODE  755 

award,  arbitration,  or  decree,  and  to  enforce  obedience  thereto  by  imprison- 
ment in  the  jail  or  other  place  of  confinement  in  the  district  in  which  the 
United  States  may  lawfully  imprison  any  person  arrested  under  the  authority 
of  the  United  States,  until  such  award,  arbitration,  or  decree  is  complied  with, 
or  the  parties  are  otherwise  discharged  therefrom,  by  the  consent  in  writing  of 
such  consul,  vice  consul,  or  commercial  agent,  or  his  successor  in  office,  or  by 
^the  authority  of  the  foreign  government  appointing  such  consul,  vice  consul, 
or  commercial  agent:  Provided,  however,  That  the  expenses  of  the  said 
imprisonment  and  maintenance  of  the  prisoners,  and  the  cost  of  the  pro- 
ceedings, shall  be  borne  by  such  foreign  government,  or  by  its  consul,  vice 
consul,  or  commercial  agent  requiring  such  imprisonment.  The  marshals 
of  the  United  States  shall  serve  all  such  process,  and  do  all  other  acts 
necessary  and  proper  to  carry  into  effect  the  premises,  under  the  authority 
of  the  said  courts  and  commissioners. 

Annotated,  our  §  205  note  f. 

§  272.  In  all  the  courts  of  the  United  States  the  parties  may  plead 
and  manage  their  own  causes  personally,  or  by  the  assistance  of  such  counsel 
or  attorneys  at  law  as,  by  the  rules  of  the  said  courts,  respectively,  are 
permitted  to  manage  and  conduct  causes  therein. 

36  Stat.  at  L.  1164,  Comp.  St.  1911,  p.  238,  1912  Supp.  F.  S.  A.  v.  1,  p. 
244.  Re-enacting  §  747,  R.  S.  Rose's  Code,  §  493,  Foster's  Fed.  Prac.  (4th  ed.) 
p.  42.3.  4  F.  S.  A.  556,  Comp.  St.  1901,  p.  590,  which  section  is  repealed  by 
§  297,  Judicial  Code.  In  general,  United  States  v.  Stone,  8  Fed.  232. 

§  273.  No  clerk,  or  assistant  or  deputy  clerk,  of  any  territorial,  district, 
or  circuit  court  of  appeals,  or  of  the  court  of  claims,  or  of  the  Supreme 
Court  of  the  United  States,  or  marshal  or  deputy  marshal  of  the  United 
States  within  the  district  for  which  he  is  appointed,  shall  act  as  a  solicitor, 
proctor,  attorney,  or  counsel  in  any  cause  depending  in  any  of  said  courts, 
or  in  any  district  for  which  he  is  acting  as  such  officer. 

36  Stat.  at  L.  1164.  Comp.  St.  1911,  pp.  238,  458,  491,  532,  1436,  1912 
Supp.  F.  S.  A.  v.  1,  p.  244.  Re-enacting  §  748,  R.  S.  Rose's  Code,  §  496, 
Comp.  St.  1901,  p.  590,  4  F.  S.  A.  153,  which  section  is  repealed  by  §  297, 
Judicial  Code. 

§  274.  Whoever  shall  violate  the  provisions  of  the  preceding  section 
shall  be  stricken  from  the  roll  of  attorneys  by  the  court  upon  complaint,  upon 
which  the  respondent  shall  have  due  notice  and  be  heard  in  his  defense;  and 
in  the  case  of  a  marshal  or  deputy  marshal  so  acting,  he  shall  be  recommend- 
ed by  the  court  for  dismissal  from  office. 

36  Stat.  at  L.  1164,  Comp.  St.  1911,  p.  238,  1912  Supp.  F.  S.  A.  v.  1,  p. 
246.  Re-enacting  §  749,  R.  S.  Rose's  Code,  §  497,  Comp.  St.  1901,  p.  591,  4 
F.  S.  A.  153,  which  section  is  repealed  by  §  297,  Judicial  Code. 


756  APPENDIX 

CHAPTER  TWELVE. 

JURIES. 

Sec.  Sec. 

275.  Qualifications     and     exemptions       283.  Foreman  of  grand  jury. 

of   jurors.  284.  Grand    juries,    when    summoned. 

276.  Jurors,  how  drawn.  285.  Discharge  of  grand  juries. 

277.  Jurors,    how    to   be   apportioned       286.  Jurors   not  to  serve   more  than 

in   the   district.  once  a  year. 

278.  Race  or  color  not  to  exclude.  287.  Challenges. 

27!».  Venire,  how  issued  and  served.  288.  Persons   disqualified   for   service 

280.  Talesmen   for   petit  juries.  on    jury    in    prosecutions    for 

281.  Special  juries.  polygamy,  etc. 

282.  Number    of   grand    jurors. 

§  275.  Jurors  to  serve  in  the  courts  of  the  United  States,  in  each  state 
respectively,  shall  have  the  same  qualifications,  subject  to  the  provisions  here- 
inafter contained,  and  be  entitled  to  the  same  exemptions,  as  jurors  of  the 
highest  court  of  law  in  such  state  may  have  and  be  entitled  to  at  the  time 
when  such  jurors  for  service  in  the  courts  of  the  United  States  are  sum- 
moned. 

Annotated,  our  §  734  note  a.     Referred  to  in  our  §  1209. 

§  276.  All  such  jurors,  grand  and  petit,  including  those  summoned  during 
the  session  of  the  court,  shall  be  publicly  drawn  from  a  box  containing,  at 
the  time  of  each  drawing,  the  names  of  not  less  than  three  hundred  persons, 
possessing  the  qualifications  prescribed  in  the  section  last  preceding,  which 
names  shall  have  been  placed  therein  by  the  clerk  of  such  court  and  a 
commissioner,  to  be  appointed  by  the  judge  thereof,  or  by  the  judge  senior 
in  commission  in  districts  having  more  than  one  judge,  which  commissioner 
shall  be  a  citizen  of  good  standing,  residing  in  the  district  in  which  such 
court  is  held,. and  a  well-known  member  of  the  principal  political  party  in 
the  district  in  which  the  court  is  held  opposing  that  to  which  the  clerk 
may  belong,  the  clerk  and  said  commissioner  each  to  place  one  name  in  said 
box  alternately,  without  reference  to  party  affiliations  until  the  whole  number 
required  shall  be  placed  therein. 

Annotated,  our  §  739  note  e.     Referred  to  in  our  §  2112. 

g  277.  Jurors    shall    be    returned    from    such    parts    of    the    district,    from 
time  to  time,  as  the  court  shall  direct,   so   as  to  be   most  favorable   to   an 
impartial  trial,  and  so  as  not  to   incur  an  unnecessary  expense,  or  unduly 
burden  the  citizens  of  any  part  of  the  district  with  such  service. 
Annotated,  our  §  738  note  d.     Referred  to  in  our  §  2111. 

§  278.  No  citizen  possessing  all  other  qualifications  which  are  or  may  be 
prescribed  by  law  shall  be  disqualified  for  service  as  grand  or  petit  juror 
in  any  court  of  the  United  States  on  account  of  race,  color,  or  previous 
condition  of  servitude. 

Annotated,  our  §  735  note  b.     Referred  to  in  our  §  2110. 

§  279.  Writs  of  venire  facias,  when  directed  by  the  court,  shall  issue  from 
the  clerk's  office,  and  shall  be  served  and  returned  by  the  marshal  in  person, 
or  by  his  deputy;  or,  in  case  the  marshal  or  his  deputy  is  not  an  indifferent 


JUDICIAL    CODE  757 

person,  or  is  interested  in  the  event  of  the  cause,  by  such  fit  person  as  may 
be  specially  appointed  for  that  purpose  by  the  court,  who  shall  administer 
to  him  an  oath  that  he  will  truly  and  impartially  serve  and  return  the  writ. 
Any  person  named  in  such  writ  who  resides  elsewhere  than  at  the  place 
at  which  the  court  is  held,  shall  be  served  by  the  marshal  mailing  a  copy 
^thereof  to  such  person  commanding  him  to  attend  as  a  juror  at  a  time  and 
place  designated  .-therein,  which  copy  shall  be  registered  and  deposited  in  the 
postoffice  addressed  to  such  person  at  his  usual  postoffice  address.  And  the 
receipt  of  the  peison  so  addressed  for  such  registered  copy  shall  be  regarded 
as  personal  service  of  such  writ  upon  such  person,  and  no  mileage  shall  be 
allowed  for  the  service  of  such  person.  The  postage  and  registry  fee  shall  be 
paid  by  the  marshal  and  allowed  him  in  the  settlement  of  his  accounts. 
Annotated,  our  §  740  note  f.  Referred  to  in  our  §  2113. 

§  280.  When,  from  challenges  or  otherwise,  there,  is  not  a  petit  jury  to 
determine  any  civil  or  criminal  cause,  the  marshal  or  his  deputy  shall,  by 
order  of  the  court  in  which  such  defect  of  jurors  happens,  return  jurymen 
from  the  bystanders  sufficient  to  complete  the  panel;  and  when  the  marshal 
or  his  deputy  is  disqualified  as  aforesaid,  jurors  may  be  so  returned  by  such 
disinterested  person  as  the  court  may  appoint,  and  such  person  shall  be 
sworn,  as  provided  in  the  preceding  section. 
Annotated,  our  §  741  note  g. 

§  281.  When  special  juries  are  ordered  in  any  district  court,  they  shall 
be  returned  by  the  marshal  in  the  same  manner  and  form  as  is  required 
in  such  cases  by  the  laws  of  the  several  states. 

Annotated,  our  §  742  note  h.     Referred  to  in  our  §  2114. 

§  282.  Every  grand  jury  impaneled  before  any  district  court  shall  consist 
of  not  less  than  sixteen  nor  more  than  twenty-three  persons.  If  of  the 
persons  summoned  less  than  sixteen  attend,  they  shall  be  placed  on  the  grand 
jury,  and  the  court  shall  order  the  marshal  to  summon,  either  immediately 
or  for  a  day  fixed,  from  the  body  of  the  district,  and  not  from  the  bystanders, 
a  sufficient  number  of  persons  to  complete  the  grand  jury.  And  whenever 
a  challenge  to  a  grand  juror  is  allowed,  and  there  are  not  in  attendance 
other  jurors  sufficient  to  complete  the  grand  jury,  the  court  shall  make  a 
like  order  to  the  marshal  to  summon  a  sufficient  number  of  persons  for  that 
purpose. 

Annotated,  our  §  2116  note  i. 

§  283.  From  the  persons  summoned  and  accepted  as  grand  jurors,  the  court 
shall  appoint   the  foreman,  who  shall  have  power  to  administer  oaths  and 
affirmations   to  witnesses  appearing  before  the  grand  jury. 
Annotated,  our  §  2117  note  k. 

§  284.  No  grand  jury  shall  be  summoned  to  attend  any  district  court 
unless  the  judge  thereof,  in  his  own  discretion  or  upon  a  notification  by  the 
district  attorney  that  such  jury  will  be  needed,  orders  a  venire  to  issue 
therefor.  If  the  United  States  attorney  for  any  district  which  has  a  city 
or  borough  containing  at  least  three  hundred  thousand  inhabitants  shall  cer- 
tify in  writing  to  the  district  judge,  or  the  senior  district  judge  of  the 
district,  that  the  exigencies  of  the  public  service  require  it,  the  judge  may, 
in  his  discretion,  also  order  a  venire  to  issue  for  a  second  grand  jury.  And 
said  court  may  in  term  order  a  grand  jury  to  be  summoned  at  such  time, 


758  APPENDIX 

and  to  serve  such  time  as  it  may  direct,  whenever,  in  its  judgment,  it  may 
be  proper  to  do  so.  But  nothing  herein  shall  operate  to  extend  beyond  the 
time  permitted  by  law  the  imprisonment  before  indictment  found  of  a  person 
accused  of  a  crime  or  offense,  or  the  time  during  which  a  person  so  accused 
may  be  held  under  recognizance  before  indictment  found. 
Annotated,  our  §  2115  note  i. 

§  285.  The  district  courts,   the  district  courts  of  the  territories,  and  the 
supreme  court  of  the  District  of  Columbia  may  discharge  their  grand  juries 
whenever  they  deem  a  continuance  of  the  sessions  of  such  juries  unnecessary. 
Annotated,  our  §  2118  note  1. 

§  286.  No  person  shall  serve  as  a  petit  juror  in  any  district  court  more 
than  one  term  in  a  year;  and  it  shall  be  sufficient  cause  of  challenge  to 
any  juror  called  to  be  sworn  in  any  cause  that  he  has  been  summoned  and 
attended  said  court  as. a  juror  at  any  term  of  said  court  held  within  one 
year  prior  to  the  time  of  such  challenge. 
Annotated,  our  §  737  note  c. 

§  287.  When  the  offense  charged  is  treason  or  a  capital  offense,  the  defend- 
ant shall  be  entitled  to  twenty  and  the  United  States  to  six  peremptory 
challenges.  On  the  trial  of  any  other  felony,  the  defendant  shall  be  entitled 
to  ten  and  the  United  States  to  six  peremptory  challenges;  and  in  all  other 
cases,  civil  and  criminal,  each  party  shall  be  entitled  to  three  peremptory 
challenges;  and  in  all  cases  where  there  are  several  defendants  or  several 
plaintiffs,  the  parties  on  each  side  shall  be  deemed  a  single  party  for  the 
purposes  of  all  challenges  under  this  section.  All  challenges,  whether  to  the 
array  or  panel,  or  to  individual  jurors  for  cause  or  favor,  shall  be  tried 
by  the  court  without  the  aid  of  triers. 

Annotated,  our  §  743  note  i.     Referred  to  in  our  §  2144. 

§  288.  In  any  prosecution  for  bigamy,  polygamy,  or  unlawful  cohabita- 
tion, under  any  statute  of  the  United  States,  it  shall  be  sufficient  cause  of 
challenge  to  any  person  drawn  or  summoned  as  a  juryman  or  talesman — 

First,  that  he  is  or  has  been  living  in  the  practice  of  bigamy,  polygamy, 
or  unlawful  cohabitation  with  more  than  one  woman,  or  that  he  is  or  has 
been  guilty  of  an  offense  punishable  either  by  sections  one  or  three  of  an 
act  entitled  "An  Act  to  Amend  Section  Fifty-Three  Hundred  and  Fifty-Two 
of  the  Revised  Statutes  of  the  United  States,  in  Reference  to  Bigamy,  and 
for  Other  Purposes,"  approved  March  twenty-second,  eighteen  hundred  and 
eighty-two,  or  by  section  fifty-three  hundred  and  fifty-two  of  the  Revised 
Statutes  of  the  United  States,  or  the  act  of  July  first,  eighteen  hundred 
and  sixty-two,  entitled  "An  Act  to  Punish  and  Prevent  the  Practice  of 
Polygamy  in  the  Territories  of  the  United  States  and  Other  Places,  and 
Disapproving  and  Annulling  Certain  Acts  of  the  Legislative  Assembly  of 
the  Territory  of  Utah;"  or 

Second,  that  he  believes  it  right  for  a  man  to  have  more  than  one  living 
and  undivorced  wife  at  the  same  time,  or  to  live  in  the  practice  of  cohabit- 
ing with  more  than  one  woman. 

Any  person  appearing  or  offered  as  a  juror  or  talesman,  and  challenged 
on  either  of  the  foregoing  grounds,  may  be  questioned  on  his  oath  as  to  the 
existence  of  any  such  cause  of  challenge;  and  other  evidence  may  be  in- 


JUDICIAL    CODE  759 

troduced    bearing    upon    the    question    raised    by    such    challenge ;    and    this 
question  shall  be  tried  by  the  court. 

But  as  to  the  first  ground  of  challenge  before  mentioned,  the  person  chal- 
lenged shall  not  be  bound  to  answer  if  he  shall  say  upon  his  oath  that 
he  declines  on  the  ground  that  his  answer  may  tend  to  criminate  himself; 
and  if  he  shall  answer  as  to  said  first  ground,  his  answer  shall  not  be 
given  in  evidence  in  any  criminal  prosecution  against  him  for  any  offense 
above  named;  but  if  he  declines  to  answer  on  any  ground,  he' shall  be  re- 
jected as  incompetent. 

Annotated,  our  §  2146  note  o. 


CHAPTER  THIRTEEN. 

GENERAL   PROVISIONS. 

Sec.  Sec. 

289.  Circuit    courts    abolished;     rec-       293.  Sections    1   to   5,   Revised   Stat- 

ords    of    to   be   transferred    to  utes.    to    govern    construction 

district   courts.  of  this  act. 

290.  Suits   pending  in  circuit   courts       294.  Laws   revised   in  this   act  to   be 

to   be   disposed    of   in   district  construed   as   continuations   of 

courts.  existing  laws. 

291.  Powers    and    duties    of    circuit       295.  Inference     of     legislative      con- 

courts    imposed    upon    district  struction  not  to  be   drawn  by 

courts.  reason   of  arrangement  of  sec- 

292.  References    to    laws    revised    in  tions. 

this    act    deemed    to    refer    to       296.  Act  may  be  designated  as  "The 
sections  of  act.  Judicial    Code." 

§  289.  The  circuit  courts  of  the  United  States,  upon  the  taking  effect 
of  this  act,  shall  be,  and  hereby  are,  abolished;  and  thereupon,  on  said  date, 
the  clerks  of  said  courts  shall  deliver  to  the  clerks  of  the  district  courts 
of  the  United  States  for  their  respective,  districts  all  the  journals,  dockets, 
books,  files,  records,  and  other  books  and  papers  of  or  belonging  to  or  in  any 
manner  connected  with  said  circuit  courts;  and  shall  also  on  said  date  deliver 
to  the  clerks  of  said  district  courts  all  moneys,  from  whatever  source  re- 
ceived, then  remaining  in  their  hands  or  under  their  control  as  clerks  of 
said  circuit  courts,  or  received  by  them  by  virtue  of  their  said  offices.  The 
journals,  dockets,  books,  files,  records,  and  other  books  and  papers  so  delivered 
to  the  clerks  of  the  several  district  courts  shall  be  and  remain  a  part  of  the 
official  redords  of  said  district  courts,  and  copies  thereof,  when  certified  under 
the  hand  and  seal  of  the  clerk  of  the  district  court,  shall  be  received  as  evi- 
dence equally  with  the  originals  thereof;  and  the  clerks  of  the  several  district 
courts  shall  have  the  same  authority  to  exercise  all  the  powers  and  to  perform 
all  the  duties  with  respect  thereto  as  the  clerks  of  the  several  circuit  courts 
had  prior  to  the  taking  effect  of  this  act. 

36  Stat.  at  L.  1167,  Comp.  St.  1911,  p.  243,  1912  Supp.  F.  S.  A.  v.  1,  p. 
2-4:).  New  legislation.  In  general,  Dallyn  et  al.  v.  Brady,  197  Fed.  494. 


760  APPENDIX 

§  200.  All  suits  and  proceedings  pending  in  said  circuit  courts  on  the 
date  of  the  taking  effect  of  this  act,  whether  originally  brought  therein  or 
certified,  thereto  from  the  district  courts,  shall  thereupon  and  thereafter 
l>i'  proceeded  with  and  disposed  of  in  the  district  courts  in  the  same  manner 
and  with  the  same  effect  as  if  originally  begun  therein,  the  record  thereof 
being  entered  in  the  records  of  the  circuit  courts  so  transferred  as  above 
provided. 

36  Stat.  at  L.  1167,  Comp.  St.  1911,  p.  243,  1912  Supp.  F.  8.  A.  v.  1,  p. 
24!).  New  legislation.  In  general,  Lincoln  v.  Robinson  et  al.  394  Fed.  571. 

§  291.  Wherever,  in  any  law  not  embraced  within  this  act,  any  reference 
is  made  to,  or  any  power  or  duty  is  conferred  or  imposed  upon,  the  circuit 
courts,  such  reference  shall,  upon  the  taking  effect  of  this  act,  be  deemed 
and  held  to  refer  to,  and  to  confer  such  power  and  impose  such  duty  upon, 
the  district  courts. 

Annotated,  our  §  744  note  i. 

§  292.  Wherever,  in  any  law  not  contained  within  this  act,  a  reference 
is  made  to  any  law  revised  or  embraced  herein,  such  reference,  upon  the 
taking  effect  hereof,  shall  be  construed  to  refer  to  the  section  of  this  act 
into  which  has  been  carried  or  revised  the  provision  of  law  to  which  refer- 
ence is  so  made. 

Annotated,  our  §  2220  note  d. 

§  293.  The  provisions  of  sections  one  to  five,  both  inclusive,  of  the  Re- 
vised Statutes,  shall  apply  to  and  govern  the  construction  of  the  provisions 
of  this  act.  The  words  "this  title,"  wherever  they  occur  herein,  shall  be 
construed  to  mean  this  act. 

Annotated,  our  §  2220  note  a. 

§  294.  The  provisions  of  this  act,  so  far  as  they  are  substantially  the 
same  as  existing  statutes,  shall  be  construed  as  continuations  thereof,  and 
not  as  new  enactments,  and  there  shall  be  no  implication  of  a  change  of 
intent  by  reason  of  a  change  of  words  in  such  statute,  unless  such  change 
of  intent  shall  be  clearly  manifest. 

Annotated,  our  §  2220  note  b. 

§  295.  The  arrangement  and  classification  of  the  several  sections  of  this 
act  have  been  made  for  the  purpose  of  a  more  convenient  and  orderly  ar- 
rangement of  the  same,  and  therefore  no  inference  or  presumption  of  a  legis- 
lative construction  is  to  be  drawn  by  reason  of  the  chapter  under  which  any 
particular  section  is  placed. 

Annotated,  our  §  2220  note  c. 

§296.  This    act    may    be    designated    and    cited    as    "The    Judicial    Code." 

36  Stat.  at  L.  1168,  Comp.  St.  1911,  p.  244,  1912  Supp.  F.  S.  A.  v.  1,  p. 
250.  New  legislation. 


JUDICIAL    CODE  761 

CHAPTER  FOURTEEN. 

REPEALING    PROVISIONS. 
\ 

Sec.  Sec. 

•297.  Sections,  acts,  and  parts  of  acts  300.  Offenses   committed,    and   penal- 
repealed,  ties,    forfeitures,    and    liabili- 

298.  Repeal    not   to   affect   tenure   of  ties  incurred,  how  to  be  prose- 

office,  or  salary,  or  compensa-  cuted    and    enforced. 

tion  of  incumbents,  etc.  301.  Date  this  act  shall  be  effective. 

299.  Accrued   rights,   etc.,  not  affect- 

ed. 

§  297.  The  following  sections  of  the  Revised  Statutes  and  acts  and  parts 
of  acts  are  hereby  repealed: 

Sections  five  hundred  and  thirty  to  five  hundred  and  sixty,  both  inclusive; 
sections  five  hundred  and  sixty-two  to  five  hundred  and  sixty-four,  both 
inclusive;  sections  five  hundred  and  sixty-seven  to  six  hundred  and  twenty- 
seven,  both  inclusive;  sections  six  hundred  and  twenty-nine  to  six  hundred 
and  forty-seven,  both  inclusive;  sections  six  hundred  and  fifty  to  six  hun- 
dred and  ninety-seven,  both  inclusive;  section  six  hundred  and  ninety-nine; 
sections  seven  hundred  and  two  to  seven  hundred  and  fourteen,  both  inclu- 
sive; sections  seven  hundred  and  sixteen  to  seven  hundred  and  twenty,  both 
inclusive;  section  seven  hundred  and  twenty-three;  sections  seven  hundred 
and  twenty-five  to  seven  hundred  and  forty -nine,  both  inclusive;  sections 
eight  hundred  to  eight  hundred  and  twenty -two,  both  inclusive;  sections  ten 
hundred  and  forty-nine  to  ten  hundred  and  eighty-etght,  both  inclusive; 
sections  ten  hundred  and  ninety-one  to  ten  hundred  and  ninety-three,  both 
inclusive,  of  the  Revised  Statutes. 

"An  Act  to  Determine  the  Jurisdiction  of  Circuit  Courts  of  the  United 
States  and  to  Regulate  the  Removal  of  Causes  from  State  Courts,  and  for 
Other  Purposes,"  approved  March  third,  eighteen  hundred  and  seventy-five. 

Section  five  of  an  act  entitled  "An  Act  to  Amend  Section  Fifty-Three 
Hundred  and  Fifty-Two  of  the  Revised  Statutes  of  the  United  States,  in 
Reference  to  Bigamy,  and  for  Other  Purposes,"  approved  March  twenty- 
second,  eighteen  hundred  and  eighty-two;  but  sections  six,  seven,  and  eight 
of  said  act,  and  sections  one,  two,  and  twenty-six  of  an  act  entitled  "An 
Act  to  Amend  an  Act  Entitled  'An  Act  to  Amend  Section  Fifty-Three 
Hundred  and  Fifty-Two  of  the  Revised  Statutes  of  the  United  States,  in 
Reference  to  Bigamy,  and  for  Other  Purposes,'  Approved  March  Twenty- 
second,  Eighteen  Hundred  and  Eighty-Two,"  approved  March  third,  eighteen 
hundred  and  eighty-seven  are  hereby  continued  in  force. 

"An  Act  to  Afford  Assistance  and  Relief  to  Congress  and  Executive  De- 
partments in  the  Investigation  of  Claims  and  Demands  against  the  Govern- 
ment," approved  March  third,  eighteen  hundred  and  eighty-three. 

"An  Act  Regulating  Appeals  from  the  Supreme  Court  of  the  District 
of  Columbia  and  the  Supreme  Courts  of  the  Several  Territories,"  approved 
March  third,  eighteen  hundred  and  eighty-five. 

"An  Act  To   Provide   for   the   Bringing  of   Suits   against   the   Government 


762  APPENDIX 

of  the  United  States,"  approved  March  third,  eighteen  hundred  and  eighty- 
seven,  except  sections  four,  five,  six,  seven,  and  ten  thereof. 

Sections  one,  two,  three,  four,  six,  and  seven  of  an  act  entitled  "An  Act 
to  Correct  the  Enrollment  of  an  Act  Approved  March  Third,  Eighteen 
Hundred  and  Eighty-Seven,  Entitled  'An  Act  to  Amend  Sections  One,  Two, 
Three,  and  Ten  of  an  Act  to  Determine  the  Jurisdiction  of  the  Circuit 
Courts  of  the  United  States,  and  to  Regulate  the  Removal  of  Causes  from 
the  State  Courts,  and  for  Other  Purposes,'  Approved  March  Third,  Eighteen 
Hundred  and  Seventy-Five,"  approved  August  thirteenth,  eighteen  hundred  and 
eighty-eight. 

"An  Act  to  Provide  for  the  Bringing  of  Suits  against  the  Government 
Cases  Not  Capital  and  Confer  the  Same  on  the  Circuit  Courts  of  Appeals," 
approved  January  twentieth,  eighteen  hundred  and  ninety-seven. 

"An  Act  to  Amend  Sections  One  and  Two  of  the  Act  of  March  Third, 
Eighteen  Hundred  and  Eighty-Seven,  Twenty-Fourth  Statutes  at  Large, 
Chapter  Three  Hundred  and  Fifty-Nine,"  approved  June  twenty-seventh, 
eighteen  hundred  and  ninety-eight. 

"An  Act  to  Amend  the  Seventh  Section  of  the  Act  Entitled  'An  Act  to 
Establish  Circuit  Courts  of  Appeals  and  to  Define  and  Regulate  in  Certain 
Cases  the  Jurisdiction  of  the  Courts  of  the  United  States,  and  for  Other 
Purposes,'  Approved  March  Third.  Eighteen  Hundred  and  Ninety-One,  and 
the  Several  Acts  Amendatory  Thereto,"  approved  April  fourteenth,  nineteen 
hundred  and  six. 

All  acts  and  parts  of  acts  authorizing  the  appointment  of  United  States 
circuit  or  district  judges,  or  creating  or  changing  judicial  circuits,  or  judicial 
districts  or  divisions  thereof,  or  fixing  or  changing  the  times  or  places 
of  holding  court  therein,  enacted  prior  to  February  first,  nineteen  hundred 
and  eleven. 

Sections  one,  two,  three,  foiir,  five,  the  first  paragraph  of  section  six, 
and  section  seventeen  of  an  act  entitled  "An  Act  to  Create  a  Commerce 
Court,  and  to  Amend  an  Act  Entitled  'An  Act  to  Regulate  Commerce,'  Ap- 
proved February  Fourth,  Eighteen  Hundred  and  Eighty-Seven,  as  Heretofore 
Amended,  and  for  Other  Purposes,"  approved  June  eighteenth,  nineteen  hun- 
dred and  ten. 

Also  other  acts  and  parts  of  acts,  in  so  far  as  they  are  embraced  within 
and  superseded  by  this  act,  are  hereby  repealed;  the  remaining  portions 
thereof  to  be  and  remain  in  force  with  the  same  effect  and  to  the  same 
extent  as  if  this  act  had  not  been  passed. 

26  Stat.  at  L.  1168,  Comp.  St.  1911,  pp.  244,  245,  1912  Supp.  F.  S.  A.  v. 
1,  p.  250.  In  general,  United  States  v.  Winslow,  227  U.  S.  202,  57  L.  ed.  481, 
33  Sup.  Ct.  Rep.  253. 

§  298.  The  repeal  of  existing  laws  providing  for  the  appointment  of 
judges  and  other  officers  mentioned  in  this  act,  or  affecting  the  organization 
of  the  courts,  shall  not  be  construed  to  affect  the  tenure  of  office  of  the 
incumbents  (except  the  office  be  abolished),  but  they  shall  continue  to  hold 
their  respective  offices  during  the  terms  for  which  appointed,  unless  removed 


JUDICIAL    CODE  763 

as  provided  by  law;  nor  (except  the  office  be  abolished)  shall  such  repeal 
affect  the  salary  or  fees  or  compensation  of  any  officer  or  person  holding 
office  or  position  by  virtue  of  any  law. 

36  Stat.  at  L.  1169,  Comp.  St.  1911,  p.  246,  1912  Supp.  F.  S.  A.  v.  1,  p. 
252.  In  general,  United  States  v.  New  Departure  Mfg.  Co.  et  al.  195  Fed. 

778. 

§  299.  The  repeal  of  existing  laws,  or  the  amendments  thereof,  embraced 
in  this  act,  shall  not  affect  any  act  done,  or  any  right  accruing  or  accrued, 
or  any  suit  or  proceeding,  including  those  pending  on  writ  of  error,  appeal, 
certificate,  or  writ  of  certiorari,  in  any  appellate  court  referred  to  or  in- 
cluded within,  the  provisions  of  this  act,  pending  at  the  time  of  the  taking 
effect  of  this  act,  but  all  such  suits  and  proceedings,  and  suits  and  pro- 
ceedings for  causes  arising  or  acts  done  prior  to  such  date,  may  be  com- 
menced and  prosecuted  within  the  same  time,  and  with  the  same  effect,  as  if 
said  repeal  or  amendments  had  not  been  made. 

36  Stat.  at  L.  1169,  Comp.  St.  1911,  p.  246,  1912  Supp.  F.  S.  A.  v.  1,  p. 
252.  In  general,  Washington  Home  for  Incurables  v.  Am.  Security  Co.  224 
U.  S.  486,  56  L.  ed.  854,  32  Sup.  Ct.  Rep.  554. 

§  300.  All  offenses  committed,  and  all  penalties,  forfeitures,  or  liabilities 
incurred  prior  to  the  taking  effect  hereof,  under  any  law  embraced  in, 
amended,  or  repealed  by  this  act,  may  be  prosecuted  and  punished,  or  sued 
for  and  recovered,  in  the  district  courts,  in  the  same  manner  and  with  the 
same  effect  as  if  this  act  had  not  been  passed. 

36  Stat.  at  L.  1169,  Comp.  St.  1911,  p.  246,  1912  Supp.  F.  S.  A.  v.  1,  p. 
252.  In  general,  In  re  Steiner  et  al.  195  Fed.  299. 

§  301.  This   act   shall   take  effect   and  be   in   force   on   and   after  January 
first,  nineteen  hundred  and  twelve. 
Approved,  March  3,  1911. 

36  Stat.  at  L.  1169,  Comp.  St.  1911,  p.  247,  1912  Supp.  F.  S.  A.  v.  1,  p. 
252. 


RULES  OF  THE  UNITED  STATES 
SUPREME  COURT. 

PKOMULGATED  DECEMBER  22,  1911. 


WITH  AMENDMENTS  OF  FEBRUARY  26, 
APRIL  1,  AND  JUNK  10,  1912. 


765 


83JUH 


RULES  OF  THE  SUPREME  COURT  OF 
THE  UNITED  STATES. 


CLERK. 

1.  The  clerk  of  this  court  shall  reside  and  keep  the  office  at  the  seat  of  the 
national  government,  and  he  shall  not  practice,  either  as  attorney  or  counselor, 
in  this  court,  or  in  any  other  court,  while  he  shall  continue  to  be  clerk  of 
this  court. 

2.  The  clerk   shall  not  permit  any  original   record   or   paper  to  be   taken 
from  the  court  room,  or  from  the  office,  without  an  order  from  the  court, 
except  as  provided  by  rule  10. 

2. 

ATTORNEYS  AND  COUNSELORS. 

1.  It  shall  be  requisite  to  the  admission  of  attorneys  or  counselors  to  prac- 
tice in  this  court,  that  they  shall  have  been  such  for  three  years  past  in  the 
highest  courts  of  the  states  to  which  they  respectively  belong,  and  that  their 
private  and  professional  characters  shall  appear  to  be  fair. 

2.  They  shall  respectively  take  and  subscribe  the  following  oath  or  affirm- 
ation, viz.: 

1,  ,  do  solemnly  swear  (or  affirm)  that  I  will  de- 
mean myself,  as  an  attorney  and  counselor  of  this  court,  uprightly,  and  ac- 
cording to  law;  and  that  I  will  support  the  Constitution  of  the  United  States. 

3. 
PRACTICE. 

This  court  considers  the  former  practice  of  the  Courts  of  King's  bench  and 
of  chancery,  in  England,  as  affording  outlines  for  the  practice  of  this  court; 
and  will,  from  time  to  time,  make  such  alterations  therein  as  circumstances 
may  render  necessary. 

767 


768  APPENDIX 

4. 
BILL  OF  EXCEPTIONS. 

The  judges  of  the  district  courts  in  allowing  bills  of  exception  shall  give 
effect  to  the  following  rules: 

1.  No  bill  of  exceptions  shall  be  allowed   which   shall  contain   the  charge 
of  the  court  at  large  to  the  jury  in  trials  at  common  law,  upon  any  general 
exception  to  the  whole  of  such   charge.     But   the   party  excepting   shall   be 
required   to  state  distinctly   the   several   matters   of  law   in   such   charge   to 
which  he  excepts;  and  those  matters  of  law,  and  those  only,  shall  be  insert- 
ed in  the  bills  of  exceptions  and  allowed  by  the  court. 

2.  Only  so  much  of  the  evidence  shall  be  embraced  in  a  bill  of  exceptions 
as  may  be  necessary  to  present  clearly  the  questions  of  law  involved  in  the 
rulings  to  which  exceptions  are  reserved,  and  such  evidence  as  is  embraced 
therein  shall  be  set  forth  in  condensed  and  narrative  form,  save  as  a  proper 
understanding  of  the  questions  presented  may  require  that  parts  of  it  be  set 
forth  otherwise. 

5. 

PROCESS. 

1.  All  process  of  this  court  shall  be  in  the  name  of  the  President  of  the 
United  States,  and  shall  contain  the  Christian  names,  as  well   as  the   sur- 
names, of  the  parties. 

2.  When  process  at  common  law  or  in  equity  shall  issue  against  a  state, 
the  same  shall  be  served  on  the  governor,  or  chief  executive  magistrate,  and 
attorney-general,  of  such  state. 

3.  Process  of  subpoena,  issuing  out  of  this  court,  in  any  suit  in  equity,  shall 
be   served  on   the  defendant  sixty   days  before   the  return   day  of  the   said 
process;  and  if  the  defendant,  on  such  service  of  the  subpoena,  shall  not  ap- 
pear at  the  return  day,  the  complainant  shall  be  at  liberty  to  proceed  ex 
parte. 

6. 
MOTIONS. 

1.  All  motions  to  the  court  shall  be  reduced  to  writing,  and  shall  contain 
a  brief  statement  of  the  facts  and  objects  of  the  motion. 

2.  Forty-five  minutes  on  each  side  shall  be  allowed  to  the  argument  of  a 
motion,  and  no  more,  without  special  leave  of  the  court,  granted  before  the 
argument  begins. 

3.  No  motion  to  dismiss,  except  on  special  assignment  by  the  court,  shall 
be  heard,  unless  previous  notice  has  been  given  to  the  adverse  party,  or  the 
counsel  or  attorney  of  such  party. 

4.  All   motions   to  dismiss   writs  of  error  and  appeals,  except   motions   to 
docket  and  dismiss  under  rule  9,  must  be  submitted  in  the  first  instance  on 


RULES  OF  THE  SUPREME  COURT  769 

printed  briefs  or  arguments.  If  the  court  desires  further  argument  on  that 
subject,  it  will  be  ordered  in  connection  with  the  hearing  on  the  merits.  The 
party  moving  to  dismiss  shall  serve  notice  of  the  motion,  with  a  copy  of  his 
brief  or  argument,  on  the  counsel  for  plaintiff  in  error  or  appellant  of  rec- 
ord in  this  court,  at  least  three  weeks  before  the  time  fixed  for  submitting 
the  motion,  in  all  cases  except  where  the  counsel  to  be  notified  resides  west 
of  the  Rocky  Mountains,  in  which  case  the  notice  shall  be  at  least  thirty 
days.  Affidavits  of  the  deposit  in  the  mail  of  the  notice  and  brief  to  the 
proper  address  of  the  counsel  to  be  served,  duly  post-paid,  at  such  time  as  to 
reach  him  by  due  course  of  mail,  the  three  weeks  or  thirty  days  before  the 
time  fixed  by  the  notice,  will  be  regarded  as  prima  facie  evidence  of  service 
on  counsel  who  reside  without  the  District  of  Columbia.  On  proof  of  such 
service,  the  motion  will  be  considered,  unless,  for  satisfactory  reasons,  fur- 
ther time  be  given  by  the  court  to  either  party. 

5.  The  court  in  any  pending  cause  will  receive  a  motion  to  affirm  on  the 
ground  that  it  is  manifest  that  the  writ  or  appeal  was  taken  for  delay  only, 
or   that   the   questions   on    which   the  decision   of   the   cause   depends   are   so 
frivolous  as  not  to  need  further  argument.     The  same  procedure  shall  apply 
to  and  control  such  motions  as  is  provided  for  in  cases  of  motions  to  dismiss 
under  paragraph  4  of  this  rule. 

6.  Although  the  court  upon  consideration  of  a  motion  to  dismiss  or  a  mo- 
tion to  affirm  may  refuse  to  grant  the  motion,  it  may  nevertheless,  if  the 
conclusion  is  arrived  at  that  the  case  is  of  such  a  character  as  not  to  justify 
extended  argument,  order  the  cause  transferred   for  hearing  to   a   summary 
docket.     The   hearing  of  the   causes   on   such   docket   will   be   expedited,   the 
court  providing  from  time  to  time  for  such  speedy  disposition  of  the  docket 
as  the  regular  order  of  business   may  permit,   and   on   the   hearing  of   such 
causes  one  half  hour  will  be  allowed  each  side  for  oral  argument. 

7.  The   court    will   not   hear    arguments    on    Saturday    (unless    for    special 
cause  it  shall  order  to  the  contrary ) ,  but  will  devote  that  day  to  the  other 
business  of  the  court.     The  motion  day  shall  be  Monday  of  each  week;   and 
motions  not  required  by  the  rules  of  the  court  to  be  put  on  the  docket  shall 
be  entitled  to  preference  immediately  after  the  reading  of  opinions,  if  such 
motions  shall  be  made  before  the  court  shall  have  entered  upon  the  hearing 
of  a  case  upon  the  docket. 

7. 
LAW  LIBRARY. 

1.  During  the  session  of  the  court,  any  gentleman  of  the  bar  having  a  case 
on  the  docket,  and  wishing  to  use  any  book  or  books  in  the  law  library, 
shall  be  at  liberty,  upon  application  to  the  clerk  of  the  court,  to  receive  an 
order  to  take  the  same  (not  exceeding  at  any  one  time  three)  from  the  li- 
brary, he  being  thereby  responsible  for  the  due  return  of  the  same  within 
a  reasonable  time,  or  when  required  by  the  clerk.  And  in  case  the  same 
shall  not  be  so  returned,  the  party  receiving  the  same  shall  be  responsible 
for  and  forfeit  and  pay  twice  the  value  thereof,  and  also  one  dollar  per  day 
for  each  day's  detention  beyond  the  limited  time. 
Montg.  —49. 


770  APPENDIX 

2.  The  clerk  shall   deposit  in  the  law  library,  to  be  there  carefully  pre- 
served, one  copy  of  the  printed  record  in  every  case  submitted  to  the  court 
for  its  consideration,  and  of  all  printed  motions,  briefs,  or  arguments  filed 
therein. 

3.  The  marshal  shall  take  charge  of  the  books  of  the  court,  together  with 
such  of  the  duplicate  law  books  as  Congress  may  direct  to  be  transferred  to 
the  court,  and  arrange  them  in  the  conference  room,  which  he  shall  have  fitted 
up  in  a  proper  manner;  and  he  shall  not  permit  such  books  to  be  taken  there- 
from by  any  one  except  the  justices  of  the  court. 


WRIT  OF  ERROR  AND  APPEAL,  RETURN  AND  RECORD. 

1.  The  clerk  of  the  court  to  which  any  writ  of  error  may  be  directed  shall 
make  return  of  the  same,  by  transmitting  a  true  copy  of  the  record,  and  of 
the  assignment  of  errors,  and  of  all  proceedings  in  the  case,  under  his  hand 
and  the  seal  of  the  court. 

In  order  to  enable  the  clerk  to  perform  such  duty  and  for  the  purpose  of 
reducing  the  size  of  transcripts  of  record  in  cases  brought  to  this  court  by 
appeal  or  writ  of  error,  by  eliminating  all  papers  not  necessay  to  the  con- 
sideration of  the  questions  to  be  reviewed,  it  shall  be  the  duty  of  the  appel- 
lant or  plaintiff  in  error  or  his  attorney  to  file  with  the  clerk  of  the  lower 
court,  together  with  proof  or  acknowledgment  of  service  of  a  copy  on  the 
appellee  or  defendant  in  error,  or  his  counsel,  a  precipe  which  shall  indicate 
the  portions  of  the  record  to  be  incorporated  into  the  transcript  of  the  rec- 
ord on  such  appeal  or  writ  of  error.  Should  the  appellee  or  defendant  in  er- 
ror, or  his  counsel,  desire  additional  portions  of  the  record  incorporated  into 
the  transcript  of  the  record  to  be  filed  in  this  court,  he  shall  file  with  the 
clerk  of  the  lower  court  his  precipe  also,  within  ten  days  thereafter  (unless 
the  time  shall  be  enlarged  by  a  judge  of  the  lower  court  or  by  a  justice  of 
this  court),  indicating  such  additional  portions  of  the  record  desired  by  him. 

The  clerk  of  the  lower  court  shall  transmit  to  this  court  as  the  transcript 
of  the  record  in  the  case  only  the  portions  of  the  record  below  designated  by 
both  parties  as  above  provided. 

The  parties  or  their  counsel,  however,  may  agree  by  written  stipulation  to 
be  filed  with  the  clerk  of  the  lower  court  the  portions  of  the  record  which 
shall  constitute  the  transcript  of  record  on  appeal  or  writ  of  error,  and  the 
clerk  in  such  case  shall  transmit  only  the  papers  designated  in  such  stipula- 
tion. 

If  this  court  shall  find  that  portions  of  the  record  unnecessary  to  a  proper 
presentation  of  the  case  have  been  incorporated  into  the  transcript  by  either 
party,  the  court  may  order  that  the  whole  or  any  part  of  the  clerk's  fee 
for  supervising  the  printing  and  of  the  cost  of  printing  the  record  be  paid 
by  the  offending  party. 

2.  In  all  cases  brought  to  this  court,  by  writ  of  error  or  appeal,  to  review 
any  judgment  or  decree,  the  clerk  of  the  court  by  which  such  judgment  or  de- 
cree was  rendered  shall  annex  to  and  transmit  with  the  record  a  copy  of  the 
opinion  or  opinions  filed  in  the  case. 


KULES  OF  THE  SUPKEME  COURT  771 

3.  No  case  will  be  heard  until  a  complete  record,  containing  in  itself,  and 
not  by  reference,  all  the  papers,  exhibits,  depositions,  and  other  proceedings 
which  are  necessary  to  the  hearing  in  this  court,  shall  be  filed. 

4.  Whenever  it  shall  be  necessary  or  proper,  in  the  opinion  of  the  presid- 
ing judge  in  any  district  court,  that  original  papers  of  any  kind  should  be 
inspected   in  this  court  upon  writ   of  error  or  appeal,  such  presiding  judge 
may  make  such  rule  or  order  for  the  safe-keeping,  transporting,  and  return 
of  such  original  papers  as  to  him  may  seem  proper,  and  this  court  will  re- 
ceive and  consider  such  original  papers  in  connection  with  the  transcript  of 
the  proceedings. 

5.  All  appeals,  writs  of  error,  and  citations  must  be  made  returnable  not 
exceeding  thirty  days  from  the  day  of  signing  the  citation,  whether  the  re- 
turn day  fall  in  vacation  or  in  term  time,  and  be  served  before  the  return 
day,  except  in  writs  of  error  and  appeals  from  California,  Oregon,  Nevada, 
Washington,  New  Mexico,  Utah,  Arizona,  Montana,  Wyoming,  North  Dakota, 
South  Dakota,  Alaska,  Idaho,  Hawaii  and  Porto  Rico,  when  the  time  shall 
be  extended  to  sixty  days  and  from  the  Philippine  Islands  to  one  .hundred 
and  twenty  days. 

6.  The  record  in  cases  of  admiralty  and  maritime  jurisdiction,  when  under 
the  requirements  of  law  the  facts  have  been   found  in  the  court  below,  and 
the  power  of  review  is  limited  to  the  determination  of  questions  of  law  aris- 
ing on  the  record,  shall  be  confined  to  the  pleadings,  the  findings  of  fact,  and 
conclusions  of  law  thereon,  the  bills  of  exceptions,  the  final  judgment  or  de- 
cree, and   such   interlocutory  orders  and  decrees  as  may  be  necessary   to   a 
proper  review  of  the  case. 

9. 

DOCKETING  CASES. 

1.  It  shall  be  the  duty  of  the  plaintiff  in  error  or  appellant  to  docket  the 
case  and  file  the  record  thereof  with  the  clerk  of  this  court  by  or  before  the 
return  day,  whether  in  vacation  or  in  term  time.    But,  for  good  cause  shown, 
the  justice  or  judge  who   signed  the  citation,  or   any  justice  of  this   court, 
may  enlarge  the  time,  by  or  before  its  expiration,  the  order  of  enlargement 
to  be  filed  with  the  clerk  of  this  court.     If  the  plaintiff  in  error  or  appellant 
shall  fail  to  comply  with  this  rule,  the  defendant  in  error  or  appellee  may 
have  the  cause  docketed  and  dismissed  upon  producing  a  certificate,  whether 
in  term   time   or  vacation,   from   the   clerk   of   the   court   wherein   the   judg- 
ment or  decree  was  rendered,  stating  the  case  and  certifying  that  such  writ 
of  error  or  appeal  has  been  duly  sued  out  or  allowed.     And  in  no  case  shall 
the  plaintiff  in  error  or  appellant  be  entitled  to  docket  the  case  and  file  the 
record   after   the   same   shall  have   been    docketed   and   dismissed   under   this 
rule,  unless  by  order  of  the  court. 

2.  But  the  defendant  in  error  or  appellee  may,  at  his  option,  docket  the 
case  and  file  a  copy  of  the  record  with  the  clerk  of  this  court;   and  if  the 
case  is  docketed  and  a  copy  of  the  record  filed  with  the  clerk  of  this  court 
by  the  plaintiff  in  error  or  appellant  within  the  period  of  time  above  limited 


772  APPENDIX 

and  prescribed  by  this  rule,  or  by  the  defendant  in  error  or  appellee  at  any 
time  thereafter,  the  case  shall  stand  for  argument. 

3.  Upon  the  filing  of  the  transcript  of  a  record  brought  up  by  writ  of  er- 
ror or  appeal,  the  appearance  of  the  counsel  for  the  party  docketing  the  case 
shall  be  entered. 

10. 
PRINTING  RECORDS. 

1.  In  all  cases  the  plaintiff  in  error  or  appellant,  on  docketing  a  case  and 
filing  the  record,  shall  make  such  cash  deposit  with  the  clerk  for  the  pay- 
ment of  his  fees  as  he  may  require  or  otherwise  satisfy  him  in  that  behalf. 

2.  The  clerk  shall  cause  an  estimate  to  be  made  of  the  cost  of  printing  the 
record,  and  of  his  fee  for  preparing  it  for  the  printer  and  supervising  the 
printing,  and  shall  notify  to  the  party  docketing  the  case  the  amount  of  the 
estimate*     If  he  shall  not  pay  it  within  a  reasonable  time,  and  for  want  of 
such  payment  the  record  shall  not  have  been  printed  when  a  case  is  reached 
in  the   regular  call  of  the  docket,  the  case  shall  be  dismissed. 

3.  Upon  payment  of  the  amount  estimated  by  the  clerk,  thirty  copies  of 
the  record  shall  be  printed,  under  his  supervision,  for  the  use  of  the  court  and 
of  counsel. 

4.  In  cases  of  appellate  jurisdiction  the  original  transcript  on  file  shall  be 
taken  by  the  clerk  to  the  printer.     But  the  clerk   shall  cause  copies  to  be 
made  for  the  printer  of  such  original  papers,  sent  up  under  rule  8,  §  4,  as  are 
necessary  to  be  printed;   and  of  the  whole  record  in  cases  of  original  juris- 
diction. 

5.  The  clerk  shall  supervise  the  printing,  and  see  that  the  printed  copy  is 
properly  indexed.     He  shall  distribute  the  printed  copies  to  the  justices  and 
the  reporter,  from  time  to  time,  as  required,  and  a  copy  to  the  counsel  for 
the  respective  parties. 

6.  If  the  actual  cost  of  printing  the  record,  together  with  the  fee  of  the 
clerk,  shall  be  less  than  the  amount  estimated  and  paid,  the  amount  of  the 
difference  shall  be  refunded  by  the  clerk  to  the  party  paying  it.     If  the  ac- 
tual cost  and  clerk's  fee  shall  exceed  the  estimate,  the  amount  of  the  excess 
shall  be  paid  to  the  clerk  before  the  delivery  of  a  printed  copy  to  either  party 
•or  his  counsel. 

7.  In  case  of  reversal,  affirmance,  or  dismissal,  with  costs,  the  amount  of 
the  cost  of  printing  the  record  and  of  the  clerk's  fee  shall  be  taxed  against 
the  party  against  whom  costs  are  given,  and  shall  be  inserted  in  the  body  of 
the  mandate  or  other  proper  process. 

8.  Upon   the   clerk's   producing   satisfactory   evidence,   by    affidavit    or   the 
acknowledgment  of  the  parties  or  their  sureties,  of  having  served  a  copy  of 
the  bill  of  fees  due  by  them,  respectively,  in  this  court,  on  such  parties  or 
their  sureties,  an  attachment  shall  issue  against  such  parties  or  sureties,  re- 
spectively, to  compel   payment  of  said  fees. 

9.  The  plaintiff  in  error  or  appellant  may,  within  ninety  days  after  filing 
the  record  in   this   court,   file   with   the  clerk  a   statement   of   the   errors   on 
which  he  intends  to  rely,   and   of   the   parts   of  the   record   which  he  thinks 


RULES  OF  THE  SUPREME  COURT  773 

necessary  for  the  consideration  thereof,  with  proof  of  service  of  the  same 
on  the  adverse  party.  The  adverse  party,  within  ninety  days  thereafter,  may 
designate  in  writing,  filed  with  the  clerk,  additional  parts  of  the  record 
which  he  thinks  material;  and,  if  he  shall  not  do  so,  he  shall  be  held  to  have 
consented  to  a  hearing  on  the  parts  designated  by  the  plaintiff  in  error  or 
appellant.  If  parts  of  the  record  shall  be  so  designated  by  one  or  both  of 
the  parties,  the  clerk  shall  print  those  parts  only;  and  the  court  will  con- 
sider nothing  but  those  parts  of  the  record,  and  the  errors  so  stated.  If  at 
the  hearing  it  shall  appear  that  any  material  part  of  the  record  has  not  been 
printed,  the  writ  of  error  or  appeal  may  be  dismissed,  or  such  other  order 
made  as  the  circumstances  may  appear  to  the  court  to  require.  If  the  defend- 
ant in  error  or  appellee  shall  have  caused  unnecessary  parts  of  the  record  to 
be  printed,  such  order  as  to  costs  may  be  made  as  the  court  shall  think  proper. 
The  fees  of  the  clerk  under  rule  24,  §  7,  shall  be  computed,  as  at  present, 
on  the  folios  in  the  record  as  filed,  and  shall  be  in  full  for  the  performance 
of  his  duties  in  the  execution  hereof. 

11. 
TRANSLATIONS. 

Whenever  any  record  transmitted  to  this  court  upon  a  writ  of  error  or  ap- 
peal shall  contain  any  document,  paper,  testimony,  or  other  proceedings  in  a 
foreign  language,  and  the  record  does  not  also  contain  a  translation  of  such 
document,  paper,  testimony,  or  other  proceedings,  made  under  the  authority 
of  the  inferior  court,  or  admitted  to  be  correct,  the  record  shall  not  be 
printed;  but  the  case  shall  be  reported  to  this  court  by  the  clerk,  and  the 
court  will  order  that  a  translation  be  supplied  and  inserted  in  the  record. 

12. 
FURTHER  PROOF. 

1.  In  all  cases  where  further  proof  is  ordered  by  the  court,  the  depositions 
which  may  be  taken  shall  be  by  a  commission,  to  be  issued  from  this  court, 
or  from  any  district  court  of  the  United  States. 

2.  In  all  cases  of  admiralty  and  maritime  jurisdiction,  where  new  evidence 
shall   be   admissible   in   this   court,   the   evidence  by   testimony   of   witnesses 
shall  be  taken   under  a  commission   to  be   issued   from  this   court,   or   from 
any  district  court   of  the  United   States,  under  the  direction   of   any  judge 
thereof;  and  no  such  commission  shall  issue  but  upon  interrogatories,  to  be 
filed  by  the  party  applying  for  the  commission,  and  notice  to  the  opposite 
party  or  his  agent  or  attorney,  accompanied  with  a  copy  of  the  interroga- 
tories so  filed,  to  file  cross-interrogatories  within  twenty  days  from  the  serv- 
ice of  such  notice:     Provided,  liowever,  That  nothing  in  this  rule  shall  pre- 
vent any  party  from  giving  oral  testimony  in  open  court  in  cases  where  by 
law  it  is  admissible. 


774:  APPENDIX 

13. 
OBJECTIONS  TO  EVIDENCE  IN  THE  RECORD. 

In  all  cases  of  equity  or  admiralty  jurisdiction,  heard  in  this  court,  no 
objection  shall  hereafter  be  allowed  to  be  taken  to  the  admissibility  of  any 
deposition,  deed,  grant,  or  other  exhibit  found  in  the  record  as  evidence,  un- 
less objection  was  taken  thereto  in  the  court  below  and  entered  of  record; 
but  the  same  shall  otherwise  be  deemed  to  have  been  admitted  by  consent. 

14. 
CERTIORARI. 

No  certiorari  for  diminution  of  the  record  will  be  hereafter  awarded  in 
any  case,  unless  a  motion  therefor  shall  be  made  in  writing,  and  the  facts 
on  which  the  same  is  founded  shall,  if  not  admitted  by  the  other  party,  be 
verified  by  affidavit.  And  all  motions  for  certiorari  must  be  made  at  the 
first  term  of  the  entry  of  the  case;  otherwise,  the  same  will  not  be  granted, 
unless  upon  special  cause  shown  to  the  court,  accounting  satisfactorily  for 
the  delay. 

15. 
DEATH  OF  A  PARTY. 

1.  Whenever,  pending  a  writ  of  error  or  appeal  in  this  court,  either  party 
shall  die,  the  proper  representatives  in   the  personalty  or  realty  of  the  de- 
ceased party,  according  to  the  nature  of  the  case,  may  voluntarily  come  in 
and  be  admitted  parties  to  the  suit,  and  thereupon  the  case  shall  be  heard 
and  determined  as  in  other  cases;  and  if  such  representatives  shall  not  volun- 
tarily become  parties,  then  the  other  party  may  suggest  the  death  on   the 
record,  and  thereupon,  on  motion,  obtain  an  order  that  unless  such  representa- 
tives shall  become  parties  within  the  first  ten  days  of  the  ensuing  term,  the 
party  moving  for  such  order,  if  defendant  in  error  or  appellee,  shall  be  en- 
titled to  have  the  writ  of  error  or  appeal  dismissed;    and   if  the  party  so 
moving  shall  be  plaintiff  in  error  or  appellant  he  shall  be  entitled  to  open 
the  record,   and  on  hearing  have  the  judgment  or  decree   reversed,   if   it  be 
erroneous:      Provided,    however,   that   a   copy   of   every   such    order   shall   be 
printed  in  some  newspaper  of  general  circulation  within  the  state,  territory, 
or  district  from  which  the  case   is   brought,   for  three   successive  weeks,   at 
least  sixty  days  before  the  beginning  of  the  term  of  the  Supreme  Court  then 
next  ensuing. 

2.  When  the  death  of  a  party  is  suggested,  and  the  representatives  of  the 
deceased  do  not  appear  by  the  tenth  day  of  the  second  term  next  succeeding 
the  suggestion,  and  no  measures  are  taken  by  the  opposite  party  within  that 
time  to  compel  their  appearance,  the  case  shall  abate. 

3.  When  either  party  to  a  suit  in  a  court  of  the  United  States  shall  de- 


RULES  OF  THE  SUPREME  COURT  775 

sire  to  prosecute  a  writ  of  error  or  appeal  to  the  Supreme  Court  of  the 
United  States,  from  any  final  judgment  or  decree,  rendered  in  such  court, 
and  at  the  time  of  suing  out  such  writ  of  error  or  appeal  the  other  party 
to  the  suit  shall  be  dead  and  have  no  proper  representative  within  the  juris- 
diction of  the  court  which  rendered  such  final  judgment  or  decree,  so  that  the 
suit  can  not  be  revived  in  that  court,  but  shall  have  a  proper  representative 
in  some  state  or  territory  of  the  United  States,  the  party  desiring  such  writ 
of  error  or  appeal  may  procure  the  same,  and  may  have  proceedings  on  such 
judgment  or  decree  superseded  or  stayed  in  the  same  manner  as  is  now  al- 
lowed by  law  in  other  cases,  and  shall  thereupon  proceed  with  such  writ  of  er- 
ror or  appeal  as  in  other  cases.  And  within  thirty  days  after  the  commence- 
ment of  the  term  to  which  such  writ  of  error  or  appeal  is  returnable,  the 
plaintiff  in  error  or  appellant  shall  make  a  suggestion  to  the  court,  sup- 
ported by  affidavit,  that  the  said  party  was  dead  when  the  writ  of  error  or 
appeal  was  taken  or  sued  out,  and  had  no  proper  representative  within  the 
jurisdiction  of  the  court  which  rendered  said  judgment  or  decree,  so  that  the 
suit  could  not  be  revived  in  that  court,  and  that  said  party  had  a  proper  rep- 
resentative in  some  state  or  territory  of  the  United  States,  and  stating 
therein  the  name  and  character  of  such  representative,  and  the  state  or  terri- 
tory in  which  such  representative  resides;  and,  upon  such  suggestion,  he  may, 
on  motion,  obtain  an  order  that,  unless  such  representative  shall  make  him- 
self a  party  within  the  first  ten  days  of  the  ensuing  term  of  the  court,  the 
plaintiff  in  error  or  appellant  shall  be  entitled  to  open  the  record,  and,  on 
hearing,  having  the  judgment  or  decree  reversed,  if  the  same  be  erroneous: 
Provided,  however,  That  a  proper  citation  reciting  the  substance  of  such  or- 
der shall  be  served  upon  such  representative,  either  personally  or  by  being 
left  at  his  residence,  at  least  sixty  days  before  the  beginning  of  the  term 
of  the  Supreme  Court  then  next  ensuing:  And  provided,  also,  That  in  every 
such  case  if  the  representative  of  the  deceased  party  does  not  appear  by  the 
tenth  day  of  the  term  next  succeeding  said  suggestion,  and  the  measures  above 
provided  to  compel  the  appearance  of  such  representative  have  not  been 
taken  within  time  as  above  required,  by  the  opposite  party,  the  case  shall 
abate:  And  provided,  also,  That  the  said  representative  may  at  any  time 
before  or  after  said  suggestion  come  in  and  be  made  a  party  to  the  suit,  and 
thereupon  the  case  shall  proceed,  and  be  heard  and  determined  as  in  other 
cases. 

16. 

NO  APPEARANCE  OF  PLAINTIFF  IN  ERROR  OR  APPELLANT. 

Where  no  counsel  appears  and  no  brief  has  been  filed  for  the  plaintiff  in 
error  or  appellant,  when  the  case  is  called  for' trial,  the  defendant  in  error  or 
appellee  may  have  the  plaintiff  in  error  or  appellant  called  and  the  writ  of 
error  or  appeal  dismissed,  or  may  open  the  record  and  pray  for  an  affirmance. 

17. 

NO  APPEARANCE  OF  DEFENDANT  IN  ERROR  OR  APPELLEE. 
Where  the  defendant  in  error  or  appellee  fails  to  appear  when  the  case 


776  APPENDIX 

is  called  for  trial,  the  court  may  proceed  to  hear  an  argument  on  the  part 
of  the  plaintiff  in  error  or  appellant  and  to  give  judgment  according  to  the 
right  of  the  case. 

18. 
NO  APPEARANCE  OF  EITHER  PARTY. 

When  a  case  is  reached  in  the  regular  call  of  the  docket,  and  there  is  no 
appearance  for  either  party,  the  case  shall  be  dismissed  at  the  cost  of  the 
plaintiff  in  error  or  appellant. 

19. 
NEITHER  PARTY  READY  AT  SECOND  TERM. 

When  a  case  is  called  for  argument  at  two  successive  terms,  and  upon  the 
call  at  the  second  term  neither  party  is  prepared  to  argue  it,  it  shall  be  dis- 
missed at  the  cost  of  the  plaintiff  in  error  or  appellant,  unless  sufficient  cause 
is  shown  for  further  postponement. 

20. 
PRINTED  ARGUMENTS. 

1.  In   all  cases  brought  here  on  writ  of  error,  appeal,  or  otherwise,  the 
court  will  receive  printed  arguments  without   regard  to  the  number   of  the 
case  on  the  docket,  if  the  counsel  on  both  sides  shall  choose  to  submit  the 
same  within  the  first  ninety  days  of  the  term;  and,  in  addition,  appeals  from 
the  court   of  claims   may  be  submitted  by  both   parties   within   thirty  days 
after   they  are  docketed,   but  not  after  the  first  day   of  April;    but   thirty 
copies  of  the  arguments,  signed  by  attorneys  or  counselors  of  this  court,  must 
he  h'rst  filed. 

2.  When  a  case  is  reached  in  the  regular  call  of  the  docket,  and  a  printed 
argument  shall  be  filed  for  one  or  both  parties,  the  case  shall  stand  on  the 
same  footing  as  if  there  were  an  appearance  by  counsel. 

3.  When  a  case  is  taken  up  for  trial  upon  the  regular  call  of  the  docket, 
and  argued  orally  in  behalf  of  only  one  of  the  parties,  no  printed  argument 
for  the  opposite  party  will  be  received,  unless  it  is  filed  before  the  oral  argu- 
ment begins,  and  the  court  will  proceed  to  consider  and  decide  the  case  upon 
the  ex  parte  argument. 

4.  No  brief  or  argument  will  .be  received,  either  through  the  clerk  or  other- 
wise, after  a  case  has  been  argued  or  submitted,  except  upon  leave  granted  in 
open  court  after  notice  to  opposing  counsel. 

21. 

BRIEFS. 
1.  The  counsel  for  plaintiff  in  error  or  appellant  shall  file  with  the  clerk  cr 


BULES  OF  THE  SUPKEME  COURT  777 

the  court,  at  least  three  weeks  before  the  case  is  called  for  argument,  thirty 
copies  of  a  printed  brief,  one  of  which  shall,  on  application,  be  furnished  to 
each  of  the  counsel  engaged  upon  the  opposite  side. 

2.  This  brief  shall  contain,  in  the  order  here  stated — 

(1)  A  concise  abstract,  or  statement  of  the  case,  presenting  succinctly  the 
questions  involved  and  the  manner  in  which  they  are  raised. 

(2)  A  specification  of  the  errors  relied  upon,  which,  in  cases  brought   up 
by  writ  of  error,  shall  set  out  separately  and  particularly  each  error  asserted 
and  intended  to  be  urged;   and  in  cases  brought  up  by  appeal  the  specifica- 
tion shall  state,  as  particularly  as  may  be,  in  what  the  decree  is  alleged  to 
be  erroneous.     When  the  error  alleged  is  to  the  admission  or  to  the  rejec- 
tion of  evidence,  the  specification  shall  quote  the  full  substance  of  the  evi- 
dence admitted  or  rejected.     When  the  error  alleged  is  to  the  charge  of  the 
court,   the   specification   shall   set   out  the   part   referred   to    totidem   verbis, 
whether   it   be   instructions   given   or   instructions   refused.     When   the   error 
alleged  is  to  a  ruling  upon  the  report  of  a  master,  the  specification  shall  state 
the  exception  to  the  report  and  the  action  of  the  court  upon  it. 

(3)  A  brief  of  the  argument,  exhibiting  a  clear  statement  of  the  points  of 
law  or  fact  to  be  discussed,  with  a  reference  to  the  pages  of  the  record  and 
the  authorities  relied  upon  in  support  of  each  point.     When  a  statute  of  a 
state  is  cited,  so  much  thereof  as  may  be  deemed  necessary  to  the  decision  of 
the  case  shall  be  printed  at  length. 

3.  The  counsel  for  a  defendant  in  error  or  an  appellee  shall  file  with  the 
clerk  thirty  printed  copies  of  his  argument,  at  least  one  week  before  the  case 
is  called  for  hearing.     His  brief  shall  be  of  like  character  with  that  required 
of  the  plaintiff  in  error  or  appellant,  except  that  no  specification  of  errors 
shall  be  required,  and  no  statement  of  the  case,  unless  that  presented  by  the 
plaintiff  in  error  or  appellant  is  controverted. 

4.  When  there  is  no  assignment  of  errors,  as  required  by  §  997  of  the  Re- 
vised Statutes,  counsel  will  not  be  heard,  except  at  the  request  of  the  court; 
and  errors  not  specified  according  to  this  rule  will  be  disregarded;   but  the 
court,  at  its  option,  may  notice  a  plain  error  not  assigned  or  specified. 

5.  When,  according  to  this  rule,  a  plaintiff  in  error  or  an  appellant  is  in 
default,  the  case  may  be  dismissed  on  motion:  and  when  a  defendant  in  error 
or  an  appellee  is  in  default,  he  will  not  be  heard,  except  on  consent  of  hi» 
adversary,  and  by  request  of  the  court. 

6.  When  no  oral  argument  is  made  for  one  of  the  parties,  only  one  coun- 
sel will  be  heard  for  the  adverse  party. 

7.  No  brief  or  printed  argument,  required  by  the  foregoing  sections,  shall 
be  filed  by  the  clerk  unless  the  same  shall  be  accompanied  by  satisfactory 
proof  of  service  upon  counsel  for  the  adverse  party. 

8.  Every  brief  of  more  than  twenty   pages  shall  contain  on   its   front   fly 
leaves  a  subject  index  with  page  references,  the  subject  index  to  be  supple- 
mented by  a  list  of  all   cases  referred   to,  alphabetically  arranged,  together 
with  references  to  pages  where  the  cases  are  cited. 

22. 

ORAL  ARGUMENTS. 
1.  The   plaintiff  in   error   or   appellant   in   this   court   shall   be  entitled   tr> 


778  APPENDIX 

open  and  conclude  the  argument  of  the  case.  But  when  there  are  cross 
appeals  they  shall  be  argued  together  as  one  case,  and  the  plaintiff  in  the 
court  below  shall  be  entitled  to  open  and  conclude  the  argument. 

2.  Only  two  counsel  will  be  heard  for  each  party  on  the  argument  of  a 
case. 

3.  One  and  one-half  hours  on  each  side  will  be  allowed  for  the  argument, 
and  no  more,  without  special  leave  of  the  court,  granted  before  the  argument 
begins.    But  in  cases  certified  from  the  circuit  courts  of  appeals,  cases  involv- 
ing solely  the  jurisdiction  of  the  court  below,   and  cases  under   the  act  of 
March  2,  1907,  34  Stat.   1246,  forty-five  minutes  only  on  each   side  will   be 
allowed  for  the  argument  unless  the  time  be  extended.     The  time  thus  allowed 
may  be  apportioned  between  the  counsel  on  the  same  side,  at  their  discretion; 
provided,   always,   that   a   fair   opening   of   the   case   shall   be   made   by   the 
party  having  the  opening  and  closing  arguments. 

23. 

INTEREST. 

1.  In  cases  where  a  writ  of  error  is  prosecuted  to  this  court,  and  the  judg- 
ment of  the  inferior  court  is  affirmed,  the  interest  shall  be  calculated   and 
levied,  from  the  date  of  the  judgment  below  until  the  same  is  paid,  at  the 
same  rate  that  similar  judgments  bear   interest  in  the  courts   of  the  state 
where  such  judgment  is  rendered. 

2.  In  all  cases  where  a  writ  of  error  shall  delay  the  proceedings  on  the 
judgment   of   the   inferior   court,   and    shall    appear   to   have   been   sued    out 
merely  for  delay,  damages  at  a  rate  not  exceeding  10  per  cent,  in  addition 
to  interest,  shall  be  awarded  upon  the  amount  of  the  judgment. 

3.  The  same  rule  shall  be  applied  to  decrees  for  the  payment  of  money  in 
cases  in  equity,  unless  otherwise  ordered  by  this  court. 

4.  In  cases  in  admiralty,  damages  and  interest  may  be  allowed  if  specially 
directed  by  the  court. 

24. 
COSTS. 

1.  In  all  cases  where  any  suit  shall  be  dismissed  in  this  court,  costs  shall 
be  allowed  to  the  defendant  in  error  or  appellee,  unless  otherwise  agreed  by 
the   parties,   except  where   the   dismissal   shall   be   for   want   of   jurisdiction, 
when  the  costs  incident  to  the  motion  to  dismiss  shall  be  allowed. 

2.  In   all   cases   of   affirmance   of   any   judgment   or   decree   in   this    court, 
costs  shall  be  allowed  to  the  defendant  in  error  or  appellee,  unless  otherwise 
ordered  by  the  court. 

3.  In  cases  of  reversal  of  any  judgment  or  decree  in  this  court,  costs  shall 
be   allowed  to  the  plaintiff  in  error   or  appellant,   unless   otherwise   ordered 
by  the  court.     The  cost  of  the  transcript  of  the  record  from  the  court  below 
shall  be  a  part  of  such  costs,  and  be  taxable  in  that  court  as  costs  in  the 
case. 


BULES  OF  THE  SDPKEME  COURT  779 

4.  Neither  of  the  foregoing  sections  shall  apply  to  cases  where  the  United 
States  are  a  party;   but  in  such  cases  no  costs  shall  be  allowed  in  this  court 
for  or  against  the  United  States. 

5.  In  all  cases  of  the  dismissal  of  any  suit  in  this  court,  it  shall  be  the 
duty  of  the  clerk  to  issue  a  mandate,  or  other  proper  process,  in  the  nature 
of    a   procedendo,   to   the   court   below,    for    the   purpose   of   informing   such 
court  of  the  proceedings  in  this  court,  so  that  further  proceedings  may  be 
had  in  such  court  as  to  law  and  justice  may  appertain. 

6.  When  costs  are  allowed  in  this  court,  it  shall  be  the  duty  of  the  clerk 
to  insert  the  amount  thereof  in  the  body  of  the  mandate,  or  other   proper 
process,   sent  to  the  court  below,  and  annex  to  the  same  the  bill   of   items 
taxed  in  detail. 

7.  In  pursuance  of  the  act  of  March  3,  1883,  authorizing  and  empowering 
this   court  to  prepare   a  table   of   fees   to   be   charged   by   the   clerk   of   this 
court,  the  following  table  is  adopted: 

For  docketing  a  case  and  filing  and  indorsing  the  transcript  of  the  record, 
five  dollars. 

For  entering  an  appearance,  twenty-five  cents. 

For  entering  a  continuance,  twenty-five  cents. 

For  filing  a  motion,  order,  or  other  paper,  twenty-five  cents. 

For  entering  any  rule,  or  for  making  or  copying  any  record  or  other 
paper,  twenty  cents  per  folio  of  each  one  hundred  words. 

For  transferring  each  case  to  a  subsequent  docket  and  indexing  the  same, 
one  dollar. 

For  entering  a  judgment  or  decree,  one  dollar. 

For  every  search  of  the  records  of  the  court,  one  dollar. 

For  a  certificate  and  seal,  two  dollars. 

For  receiving,  keeping,  and  paying  money  in  pursuance  of  any  statute  or 
order  of  court,  two  per  cent  on  the  amount  so  received,  kept,  and  paid. 

For  an  admission  to  the  bar  and  certificate  under  seal,  ten  dollars. 

For  preparing  the  record  or  a  transcript  thereof  for  the  printer,  indexing 
the  same,  supervising  the  printing,  and  distributing  the  printed  copies  to 
the  justices,  the  reporter,  the  law  library,  and  the  parties  or  their  counsel, 
fifteen  cents  per  folio;  but  when  the  necessary  printed  copies  of  the  record, 
as  printed  for  the  use  of  the  lower  court,  shall  be  furnished,  the  fee  for 
supervising  shall  be  five  cents  per  folio. 

For  making  a  manuscript  copy  of  the  record,  when  required  under  rule 
10,  twenty  cents  per  folio,  but  nothing  in  addition  for  supervising  the  print- 
ing. 

For  issuing  a  writ  of  error  and  accompanying  papers,  five  dollars. 

For  a  mandate  or  other  process,  five  dollars. 

For  filing  briefs,  five  dollars  for  each  party  appearing. 

For  every  printed  copy  of  any  opinion  of  the  court  or  any  justice  thereof, 
certified  under  seal,  two  dollars. 

25. 

OPINIONS  OF  THE   COURT. 
1.  All  opinions  delivered  by  the  court  shall,  immediately  upon  the  delivery 


780  APPENDIX 

thereof,  be  handed  to  the  clerk  to  be  printed.  And  it  shall  be  the  duty  of 
the  clerk  to  cause  the  aame  to  be  forthwith  printed,  and  to  deliver  a  copy 
to  the  reporter  as  soon  as  the  same  shall  be  printed. 

2.  The  original  opinions  of  the  court  shall  be  filed  with  the  clerk  of  this 
court  for  preservation. 

3.  Opinions   printed   under   the   supervision   of   the   justices   delivering   the 
same  need  not  be  copied  by  the  clerk  into  a  book  of  records;  but  at  the  end 
of  each  term  the  clerk  shall  cause  such  printed  opinions  to  be  bound  in  a 
substantial  manner  into  one  or  more  volumes,  and  when  so  bound  they  shall 
be  deemed  to  have  been  recorded. 

26. 
CALL  AND  ORDER  OF  THE  DOCKET. 

1.  The  court,  on  the  second  day  in  each  term,  will  commence  calling  the 
cases   for   argument   in   the   order   in   which   they   stand   on   the   docket,    and 
"proceed  from  day  to  day  during  the  term  in  the  same  order  (except  as  herein- 
after provided)  ;   and  if  the  parties,  or  either  of  them,  shall  be  ready  when 
the  case   is  called,   the   same  will   be   heard ;    and   if   neither   party   shall   be 
ready  to  proceed  in  the  argument,  the  case  shall  be  continued  to  the   next 
term  of  the  court  unless  some  good  and  satisfactory  reason  to  the  contrary 
shall  be  shown  to  the  court. 

2.  Ten  cases  only  shall  be  considered  as  liable  to  be  called   on  each   day 
during  the  term.     But  on  the  coming  in  of  the  court  on  each  day  the  entire 
number  of  such   ten  cases  will  be  called,  with  a  view  to  the  disposition  of 
such  of  them  as  are  not  to  be  argued. 

3.  Criminal   cases   may   be  advanced   by   leave   of   the   court   on   motion   of 
either  party. 

4.  Cases  once  adjudicated  by  this  court  upon  the  merits,  and  again  brought 
up  by  writ  of  error  or  appeal,  may  be  advanced  by  leave  of  the  court  on 
motion  of  either  party. 

5.  Revenue   and    other   cases    in    which   the    United    States    are   concerned, 
which  also  involve  or  affect  some  matter  of  general  public  interest,  or  which 
may  be  entitled  to  precedence  under  the  provisions  of  any  act  of  Congress, 
may   also   by   leave   of   the   court   be   advanced   on   motion   of   the    Attorney 
General. 

6.  All  motions  to  advance  cases  must  be  printed,  and  must  contain  a  brief 
statement  of  the  matter  involved,  with  the  reasons  for  the  application. 

7.  No  other  case  will  be  taken  up  out  of  the  order  on  the  docket,  or  be 
set  down  for  any  particular  day,  except  under  special  and  peculiar  circum- 
stances to  be  shown  to  the  court. 

8.  Two  or  more  cases,   involving  the  same  question,  may,  by  the  leave  of 
the  court,  be  heard  together,  but  they  must  be  argued  as  one  case. 

9.  If,   after   a   case   has   been   passed,   the   parties   shall   desire   to   have   it 
heard,   they  may   file  with  the  clerk  their  joint   request  to  that  effect,   and 
the  case  shall  then  be  by  him  reinstated  for  call  ten  cases  after  that  under 
argument,   or  next  to  be  called  at  the  end  of  the  day  the   request   is  filed. 
If   the   parties  will   not  unite   in   such   a   request,  either   may   move   to  take 


RULES  OP  THE  SUPREME  COURT  781 

up  the  case,  and  it  shall  then  be  assigned  to  such  place  upon  the  docket  as 
the  court  may  direct. 

10.  No  stipulation  to  pass  a  case  will  be  recognized  as  binding  upon  the 
court.  A  case  can  only  be  so  passed  upon  application  made  and  leave  granted 
in  open  court. 

27. 
ADJOURNMENT. 

The  court  will,  at  every  term,  announce  on  what  day  it  will  adjourn  at 
least  ten  days  before  the  time  which  shall  be  fixed  upon,  and  the  court 
will  take  up  no  case  for  argument,  nor  receive  any  case  upon  printed  briefs, 
within  three  days  next  before  the  day  fixed  upon  for  adjournment. 

28. 
DISMISSING  CASES  IN  VACATION. 

Whenever  the  plaintiff  and  defendant  in  a  writ  of  error  pending  in  this 
court,  or  the  appellant  and  appellee  in  an  appeal,  shall  in  vacation,  by  their 
attorneys  of  record,  sign-  and  file  with  the  clerk  an  agreement  in  writing 
directing  the  case  to  be  dismissed,  and  specifying  the  terms  on  which  it  is 
to  be  dismissed  as  to  costs,  and  shall  pay  to  the  clerk  any  fees  that  may 
be  due  to  him,  it  shall  be  the  duty  of  the  clerk  to  enter  the  case  dismissed, 
and  to  give  to  either  party  requesting  it  a  copy  of  the  agreement  filed;  but 
no  mandate  or  other  process  shall  issue  without  an  order  of  the  court. 

29. 
SUPERSEDEAS. 

Supersedeas  bonds  in  the  district  courts  and  circuit  courts  of  appeals  must 
be  taken,  with  good  and  sufficient  security,  that  the  plaintiff  in  error  or 
appellant  shall  prosecute  his  writ  or  appeal  to  effect,  and  answer  all  dam- 
ages and  costs  if  he  fail  to  make  his  plea  good.  Such  indemnity,  where  the 
judgment  or  decree  is  for  the  recovery  of  money  not  otherwise  secured,  must 
be  for  the  whole  amount  of  the  judgment  or  decree,  including  just  damages 
for  delay,  and  costs  and  interest  on  the  appeal;  but  in  all  suits  where  the 
property  in  controversy  necessarily  follows  the  event  of  the  suit,  as  in  real 
actions,  replevin,  and  in  suits  on  mortgages,  or  where  the  property  is  in 
the  custody  of  the  marshal  under  admiralty  process,  as  in  case  of  capturo 
or  seizure,  or  where  the  proceeds  thereof,  or  a  bond  for  the  value  thereof, 
is  in  the  custody  or  control  of  the  court,  indemnity  in  all  such  oases  is 
only  required  in  an  amount  sufficient  to  secure  the  sum  recovered  for  the 
use  and  detention  of  the  property,  and  the  costs  of  the  suit,  and  just  damages 
for  delay,  and  costs  and  interest  on  the  appeal. 


782  APPENDIX 

30. 

REHEARING. 

A  petition  for  rehearing  after  judgment  can  be  presented  only  at  the  term 
at  which  judgment  is  entered,  unless  by  special  leave  granted  during  the 
term;  and  must  be  printed  and  briefly  and  distinctly  state  its  grounds,  and 
be  supported  by  certificate  of  counsel;  and  will  not  be  granted,  or  permitted 
to  be  argued,  unless  a  justice  who  concurred  in  the  judgment  desires  it,  and 
a  majority  of  the  court  so  determines. 

31. 
FORM  OF  PRINTED  RECORDS  AND  BRIEFS. 

All  records,  arguments,  and  briefs,  printed  for  the  use  of  the  court,  must 
be  in  such  form  and  size  that  they  can  be  conveniently  bound  together,  so 
as  to  make  an  ordinary  octavo  volume;  and,  as  well  as  all  quotations  con- 
tained therein,  and  the  covers  thereof,  must  be  printed  in  clear  type  (never 
smaller  than  small  pica)  and  on  unglazed  paper. 

32. 

WRITS    OF    ERROR    AND    APPEALS    IN    CASES    INVOLVING    JURIS- 
DICTION OF  LOWER  COURT. 

Cases  brought  to  this  court  by  writ  of  error  or  appeal,  where  the  only 
question  in  issue  is  the  question  of  the  jurisdiction  of  the  court  below,  will 
be  advanced  on  motion,  and  heard  under  the  rules  prescribed  by  rule  6,  in 
regard  to  motions  to  dismiss  writs  of  error  and  appeals. 

33. 
MODELS,   DIAGRAMS,   AND   EXHIBITS   OF   MATERIAL. 

1.  Models,  diagrams,  and  exhibits  of  material  forming  part  of  the  evidence 
taken  in  the  court  below,  in  any  case  pending  in  this  court,  on  writ  of  error 
or  appeal,  shall  be  placed   in  the  custody  of   the  marshal   of   this   court   at 
least  one  month  before  the  case  is  heard  or  submitted. 

2.  All  models,  diagrams,  and  exhibits  of  material,   placed   in   the  custody 
of   the   marshal   for  the   inspection   of   the   court  on   the   hearing   of   a   case, 
must   be   taken   away   by   the   parties    within    one   month    after    the    case    is 
decided.     When   this   is  not   done,   it   shall   be   the   duty   of   the   marshal   to 
notify  the  counsel  in  the  case,  by  mail  or  otherwise,  of  the  requirements  of 
this    rule;    and   if   the   articles   are   not   removed   within    a    reasonable   time 
after  the  notice  is  given,  he  shall  destroy  them,  or  make  such  other  disposi- 
tion of  them  as  to  him  may  seem  best. 


RULES    OF    THE    SUPREME    COURT  783 

34. 
CUSTODY  OF  PRISONERS   ON  HABEAS  CORPUS. 

1.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge  declin- 
ing to  grant  the   writ  of  habeas  corpus,  the   custody  of  the  prisoner  shall 
not  be  disturbed. 

2.  Pending  an  appeal  from  the  final   decision  of  any  court  or  judge  dis- 
charging the  writ  after  it  has  been  issued,  the  prisoner  shall  be  remanded 
to  the   custody   from  which   he   was   taken   by   the  writ,   or   shall,   for   good 
cause  shown,  be  detained   in  custody  of  the  court  or  judge,  or  be  enlarged 
upon   recognizance  as  hereinafter   provided. 

3.  Pending  an  appeal  from  the  final   decision  of  any  court  or  judge  dis- 
charging the  prisoner,  he  shall  be  enlarged  upon  recognizance,  with  surety, 
for  appearance  to  answer  the  judgment  of  the  appellate  court,  except  where, 
for  special  reasons,  sureties  ought  not  to  be  required. 

35. 
ASSIGNMENT  OF  ERRORS. 

1.  Where  an  appeal  or  a  writ  of  error  is  taken  from  a  district  court  direct 
to  this  court,  under  section  238  of  the  act  entitled  "An  Act  to  Codify,  Revise, 
and   Amend  the  Laws  Relating  to  the  Judiciary,'    approved  March  3,   1911, 
chapter  231,  the  plaintiff  in  error  or  appellant  shall  file  with  the  clerk  of 
the  court  below,  with  his  petition  for  the  writ  of  error  or  appeal,  an  assign- 
ment of  errors,  which  shall  set  out  separately  and   particularly  each  error 
asserted   and    intended   to   be  urged.     No   writ  of   error  or   appeal    shall    be 
allowed   until   such   assignment   of   errors   shall   have   been   tiled.     When   the 
error  alleged  is  to  the  admission  or  to  the  rejection  of  evidence,  the  assign- 
ment of  errors  shall   quote  the   full   substance   of  the  evidence   admitted  or 
rejected.     When  the  error  alleged  is  to  the  charge  of  the  court,  the  assign- 
ment of  errors  shall  set  out  the  part  referred  to  totidem  verbis,  whether  it 
be    in    instructions   given   or    in    instructions    refused.      Such    assignment   of 
errors  shall  form  part  of  the  transcript  of  the  record,  and  be  printed  with  it. 
When  this  is  not  done  counsel   will  not  be  heard,  except  at  the  request  of 
the  court;  and  errors  not  assigned  according  to  this  rule  will  be  disregarded, 
but  the  court,  at  its  option,  may  notice  a  plain  error  not  assigned. 

2.  The  plaintiff  in  error  or  appellant  shall  cause  the  record  to  be  printed, 
according  to  the  provisions  of  sections  2,  3,  4,  5,  6,  and  9,  of  rule  10. 

36. 
APPEALS  AND  WRITS  OF  ERROR  FROM  DISTRICT  COURTS. 

1.  An  appeal  or  a  writ  of  error  from  a  district  court  direct  to  this  court, 
in  the  cases  provided  for  in  §§  238  and  252  of  the  act  entitled,  "An  Act  to 
Codify,  Revise,  and  Amend  the  Laws  Relating  to  the  Judiciary,"  approved 
March  3,  1911,  chapter  231,  may  be  allowed,  in  term  time  or  in  vacation  by 


784  APPENDIX 

any  justice  of  this  court,  or  by  any  circuit  judge  assigned  to  the  district 
court,  or  by  any  district  judge  within  his  district,  and  the  proper  security 
be  taken  and  the  citation  signed  by  him,  and  he  may  also  grant  a  supersedeas 
and  stay  of  execution  or  of  proceedings,  pending  such  writ  of  error  or  appeal. 
2.  Where  such  writ  of  error  is  allowed  in  the  case  of  a  conviction  of  an 
infamous  crime,  or  in  any  other  criminal  case  in  which  it  will  lie  under 
section  238,  the  district  court,  or  any  judge  thereof,  or  any  justice  of  this 
court,  or  any  circuit  judge  assigned  to  the  district  court,  shall  have  power, 
after  the  citation  is  served,  tp  admit  the  accused  to  bail  in  such  amount  as 
may  be  fixed. 

37. 
CASES  FROM  CIRCUIT  COURTS  OF  APPEALS. 

1.  Where,  under  section  239  of  the  act  entitled  "An  Act  to  Codify,  Revise, 
and  Amend  the  Laws  Relating  to  the  Judiciary,"  approved   March  3,   1911, 
chapter  231,  a  circuit  court  of  appeals   shall   certify   to  this   court   a   ques- 
tion or  proposition  of  law,  concerning  which  it  desires  the  instruction  of  this 
court  for  its  proper  decision,  the  certificate  shall  contain  a  proper  statement 
of  the  facts  on  which  such  question  or  proposition  of  law  arises. 

2.  If  application   is  thereupon  made   to  this  court  that  the  whole   record 
and  cause  may  be  sent  up  to  it  for  its  consideration,  the  party  making  such 
application  shall,  as  a  part  thereof,  furnish  this  court  with  a  certified  copy 
of  the  whole  of  said  record. 

3.  Where  an  application  is  submitted  to  this  court  for  a  writ  of  certiorari 
to   review   a  decision   of   a   circuit  court   of   appeals   or   any   other   court,   it 
shall  be  necessary  for  the  petitioner  to  furnish  as  an  exhibit  to  the  petition 
a  certified  copy  of  the  entire  transcript  of  record  of  the  case,  including  the 
proceedings    in   the    court   to   which    the   writ   of    certiorari    is   asked   to   be 
directed.     The   petition   shall   contain  only  a   summary  and   short  statement 
of  the  matter  involved  and  the  general   reasons  relied  on  for  the  allowance 
of  the  writ.     A  failure  to  comply  with  this  provision  will  be  deemed  a  suffi- 
cient reason  for  denying  the  petition.     Thirty  printed  copies  of  such  petition 
and   of   any   brief   deemed   necessary   shall   be   filed.      Notice   of   the   date    of 
submission  of  the  petition,  together  with   a   copy  of  the  petition  and  brief, 
if  any,  in  support  of  the  same  shall  be  served  on  the  counsel  for  the  respond- 
ent at  least  two  weeks  before  such  date  in  all  cases  except  where  the  counsel 
to  be  notified  resides  west  of  the  Rocky  Mountains,  in  which  cases  the  time 
shall  be  at  least  three  weeks.     The  brief  for  the  respondent,  if  any,  shall  be 
filed  at  least  three  days  before  the  date  fixed  for  the  submission  of  the  peti- 
tion.   Oral  argument  will  not  be  permitted  on  such  petitions,  and  no  petition 
will  be  received  within   three  days  next  before  the  day  fixed  upon   for   the 
adjournment  of  the  court  for  the  term. 

38. 

INTEREST,  COSTS,  AND  FEES. 
The  provisions  of  rules  23  and  24  of  this  court,  in  regard  to  interest  and 


RULES  OF  THE  SUPREME  COURT  85 

costs  and  fees,  shall  apply  to  writs  of  error  and  appeals  and  reviews  under 
the  provisions  of  sections  238,  239,  240,  and  241  of  the  act  entitled  "An 
Act  to  Codify,  Revise,  and  Amend  the  Laws  Relating  to  the  Judiciary," 
approved  March  3,  1911,  chapter  231. 

39. 
MANDATES. 

Mandates  shall  issue  as  of  course  after  the  expiration  of  thirty  days  from 
the  day  the  judgment  or  decree  is  entered,  unless  the  time  is  enlarged  by 
order  of  the  court,  or  of  a  justice  thereof  when  the  court  is  not  in  session, 
but  during  the  term. 

40. 
PRACTICE  IN  CASES  FROM  CIRCUIT  COURTS  OF  APPEALS. 

The  provisions  of  these  rules  relating  to  the  practice  on  direct  writs  of 
error  to  and  appeals  from  the  district  courts  shall  also  be  deemed  to  relate 
to  and  cover  the  practice  on  writs  of  error  to  and  appeals  from  the  circuit 
court  of  appeals. 

Montg.-  -50. 


INDEX  TO  RULES  OF  THE  SUPREME  COURT. 


Rules  Sec. 

Adjournment   27 

Admiralty,   record   in    . . 8  6 

Appearance  of  counsel 9  3 

for  plaintiff  in  error  or  appellant,  no   16  — 

defendant  in  error  or  appellee,  no   17 

either  party,   no 18  — 

Appeals  in  cases  involving  jurisdiction  of  district  court   32 

Appeals  under  act  of  March   3,   1911    36 

Appeals  direct  from  district  court,  when  and  by  whom  allowed.  ...  36  1 

bail  to  be  allowed,  when 36  2 

Argument,    oral    22 

order  of    22  1 

time  allowed  for    22  3 

on  motions    6  2 

printed    20  — 

submission   on    20  1 

not  received  after  submission    20  4 

Assignment  of  errors    21  2,  4 

under  act  of  March  3,  1911   35  1 

Attachment  for  clerk's   fees    10  8 

Attorneys,  admission  of   2  1 

oatli    of     2  2 

Bail,  when  and  how  granted  36  2 

Bill  of  exceptions 4 

Briefs 21 

contents   of    21  2 

time  for  filing  by  plaintiff  in  error  or  appellant   21  1 

defendant  in  error  or  appellee 21  3 

service  on   opposing   counsel   required    21  7 

index  to,  when  required,  etc 21  8 

for  respondent  on  certiorari,  when  to  be  filed    37  3 

form    of    printed    31 

not  received  after  argument   20  4 

Cases  involving  same  question  may  be  heard  together    26  8 

passed,  how  restored  to  call    26  9 

dismissal   of,   in   vacation    28  — 

Certiorari     14  — 

Certiorari  to  circuit  court  of  appeals,  regulations  governing  appli-  37  3 

cations    for    37  3 

Circuit  courts  of  appeals,  cases  from,  etc 37 

practice  in  40 

787 


788  APPENDIX 

Rules  Sec. 

Citation,  service  of   8  5 

Clerk     , 1  _ 

Clerk's   fees,   table   of 24  7 

attachment  for    10  8 

deposit    for    10  1 

Conference-room  library   7  3 

Costs  of  printing  record    10  2,  6,  7 

how  taxed    24  — 

none  recoverable  in  cases  where  United  States  is  party   ....  24  4 

Counsel,  admission  of 2  1 

appearance   of 9  3 

no    appearance    of    18  — 

two  only  to  be  heard  on  argument 22  2 

time  allowed  for  argument    22  3 

motions     6  2 

Custody  of  prisoners  on  habeas  corpus   34  — 

Damages  for  delay    ....'...'...... 23  2 

Defendant,  no  appearance  of 17  — 

Death  of  a  party 15  — 

defendant  in  error  or  appellee  after  judgment  in  lower 

court   15  3 

Deposit  for  clerk's  fees 10  1 

Dismissal  in  vacation    ; 28  — 

Docketing  cases    9  — 

by  plaintiff  in  error  or  appellant   9  1 

defendant  in  error  or  appellee   9  2 

Docket,  call  of 26  — 

day-call    26  2 

Errors,   assignment   of    21  4 

specification   of    21  2 

Evidence,  new,  how  taken    12  1 

in    admiralty 12  2 

in  the  record,  objection  to   13  — 

Exceptions,  bill  of 4         

Exhibits  of  material    33  — 

Fees,  table  of  clerk's   24  7 

attachment   for    10  8 

security   for    10  1 

Habeas  corpus,  custody  of  prisoners  on    34  — 

1  nterest     23         - 

in  admiralty    ; 23  4 

in   equity 23  3 

at   law    23  1 

under  act  of  March  3,  1911   38         

Jurisdiction — cases    involving   district   court    32         

Law  library  7         

mode  of  obtaining  books  from,  by  counsel 7  i 

clerk  to  deposit  records  in   7  2 

of    conference-room     7  3 


INDEX  TO  SUPREME  COURT  RULES  780 

Rules  Sec. 

List  of  cases  in  briefs,  when  required,  etc 21  8 

Mandates 39  — 

Mandate  in  case  dismissed   24  5 

in  vacation   28  — 

Motions 6  — 

to  be   in  writing 6  1 

notice   of- 6  3,  4 

time  allowed  for  argument   i .....  6  2 

to    affirm    v.1^  •'; .-.'.  <  ••: ...... 6  5 

to  dismiss    6  4 

Motions,  notice  and  service  of  briefs   6  4 

submission    of    6  4 

to   advance    26  6 

cases  once  adjudicated   26  4 

criminal    cases    26  3 

revenue   cases    26  5 

cases  involving  jurisdiction  of  district  court.  .  32  — 

Motion  day   6  7 

Opinions   of   the   Supreme   Court    25 

court  below  to  be  annexed  to  record   8  2 

Original  papers  not  to  be  taken  from  court  room  or  clerk's  office. .  .  1  2 

from  court  below    8  4 

Parties,  death  of   15 

Petitions  for  certiorari  to  C.  C.  A. — regulations  governing 37  3 

Plaintiff  in  error  or  appellant,  no  appearance  of   16  — 

Practice    3  — 

Process,  form  of 5  1 

service  of   5  2, 3 

Record     8  — 

return  of    8  1 

designated  record  from  court  below 8  1 

to  contain  all  necessary  papers  in  full   8  3 

opinion  of  court  below    8  2 

translations  of  papers  in  foreign  language   11 

printed  under  supervision  of  clerk    10  5 

printed  form   of    31  — 

printing  parts  of   10  9 

cost  of    10  2 

certiorari  for  diminution  of   14 

in  admiralty   cases    8  6 

in  cases  coming  up  under  act  of  March  3,  1911   37 

how   printed    35  2 

Rehearing     30  — 

Representatives  of  deceased  parties  appearing   15  1 

not  appearing   15  2 

Return  to  writ  of  error   8  — 

day    8  5 


790  APPENDIX 

Rules  Sec. 

Revenue  cases  advanced  on  motion   26  5 

Second  term,  neither  party  ready  for  trial   19  — 

Security  for  clerk's   fees    10  1 

Subpcena,  service  of    5  3 

Supersedes*   29  — 

Translations    11  — 

Writ  of  error,  return  to  8  — 

in  cases  involving  jurisdiction  of  district  courts...  32  — 

under  act  of  March  3,  1911 36  — 


RULES  OF  THE  UNITED  STATES 
CIRCUIT  COURTS  OF  APPEALS. 


(INDEXED    m  GENERAL  INDEX.) 


791 


RULES  OF  THE  UNITED  STATES  CIR- 
CUIT COURTS  OF  APPEALS. 


STATEMENT. 

The  rules  of  the  United  States  Circuit  Courts  of  Appeals  as  they  exist  in  each 
of  the  nine  circuits  are  so  similar  that  hut  one  statement  of  a  rule  is  made  where 
the  rule  is  alike  in  all  of  the  circuits.  Where  there  is  a  variance  in  different  cir- 
cuits the  variance  is  shown  either  hy  repeating  the  rule  as  it  is  in  the  several  dif- 
fering circuits,  or  by  explaining  the  difference. 

RULE   1. 


NAME. 


The  court  adopts  "United  States  Circuit  Court  of  Appeals  for  the  

Circuit"  as  the  title   of  the  court. 

The  above  is  §  1,  rule  2,  in  Sixth  circuit  and  its  rule  1  is  as  follows: 

DEFINITIONS. 

In  these  rules  "counsel"  shall  include  attorneys,  solicitors,  proctors,  and 
advocates;  "appellant"  shall  include,  also,  plaintiff  in  error,  petitioner  for 
review  or  mandamus,  and  any  other  party  seeking  review  in  this  court; 
"appellee"  shall  include,  also,  defendant  in  error  and  any  other  party  re- 
spondent in  this  court. 

RULE    2. 

SEAL. 

The  seal  shall  contain  the  words  "United  States"  on  the  upper  part  of 
the  outer  edge;  and  the  words  "Circuit  Court  of  Appeals"  on  the  lower 

part  of  the  outer  edge,  running  from  left  to  right;  and  the  words  " 

Circuit"  in  two  lines,  in  the  center,  with  a  dash  beneath. 

The  above  is  §  2,  rule  2,  in  the  Sixth  circuit. 

793 


794  APPENDIX 

RULE    3. 
TERMS  AND  SESSIONS. 

First  circuit. — One  term  of  this  court  shall  be  held  annually  at  the  city 
of  Boston  at  ten  o'clock  in  the  forenoon  on  the  first  Tuesday  of  October. 
Stated  sessions  thereof  shall  be  there  held  at  the  same  hour  on  the  first 
Tuesday  of  every  month,  and  may  be  adjourned  to  such  times  and  places 
as  the  court  may  from  time  to  time  designate.  But,  unless  otherwise  ordered, 
any  adjournment  shall  be  held  to  have  been  made  to  the  first  day  of  the 
next  stated  session. 

Second  circuit. — One  term  of  this  court  shall  be  held  annually  at  the  city 
of  New  York  on  the  second  Monday  of  October,  and  shall  be  adjourned  to 
such  times  and  places  as  the  court  may  from  time  to  time  designate. 

Third  circuit. — The  terms  of  this  court  shall  commence  and  be  held  on 
the  first  Tuesday  of  March  and  the  first  Tuesday  of  October  in  each  year, 
at  the  city  of  Philadelphia. 

Fourth  circuit. — 1.  There  shall  be  held  in  the  city  of  Richmond,  Virginia, 
three  regular  terms  of  this  court;  one  on  the  first  Tuesday  of  February, 
one  on  the  first  Tuesday  of  May,  and  one  on  tfye  first  Tuesday  of  November, 
in  each  year. 

2.  Special   sessions  of  this  court   shall   be  held  at  Richmond,  Virginia,  on 
the   second  Tuesday   of   every    month   of   the   year   except   in   those   months 
in   which  regular   terms   of   the   court   are   held.     During  said   sessions   such 
orders,  judgments  or  decrees  as  may  be  necessary  concerning  pending  cases 
may   be   considered   and   disposed   of,   opinions    in    cases    theretofore    argued 
may  be  filed  and  decrees  and  judgments  relating  thereto  entered,  mandates 
issued,  and  any  such   further  action  taken  as   is  authorized  by  the  statute 
in 'such  case  made  and  provided. 

3.  If   at   any   such   special   session   no   judge   shall   be   in   attendance,   the 
clerk   shall   adjourn   the   court   until  the   next  day,  or  to  such  time   as  the 
senior  circuit  judge  shall  direct,  and  then  in  case  no  direction  be  made,  to 
the  next  session  or  term  of  the  court. 

Fifth  circuit. — A  session  of  this  court  shall  be  held  annually  at  the  city 
of  Atlanta,  Georgia,  on  the  first  Monday  in  October;  at  the  city  of  Mont- 
gomery, Alabama,  on  the  third  Monday  in  October;  at  the  city  of  Fort 
Worth,  Texas,  on  the  first  Monday  in  November;  at  the  city  of  New  Orleans, 
Louisiana,  on  the  third  Monday  in  November,  and  shall  be  adjourned  to 
such  other  time  and  places  as  the  court  may  from  time  to  time  order  and 
designate. 

Sixth  circuit. — One  term  of  this  court  shall  be  held  annually  on  the  Tues- 
day after  the  first  Monday  in  October,  and  adjourned  sessions  on  the  Tues- 
day after  the  first  Monday  of  each  other  month  in  the  year,  except  August 
and  September.  At  the  July  session,  no  causes  will  be  heard,  except  upon 
the  special  order  of  the  court. 

All  sessions  shall  be  held  at  Cincinnati,  unless  otherwise  specially  ordered 
by  the  court. 

Seventh  circuit. — A  term  of  this  court  shall  be  held  annually  at  the 
city  of  Chicago  on  the  first  Tuesday  in  October,  and  continue  until  the 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  T95 

first  Tuesday  in  October  of  the  succeeding  year.  Every  term  shall  be  ad- 
journed to  such  time  and  places  as  the  court  may  from  time  to  time  designate. 
Unless  otherwise  specially  ordered,  the  Court  will  hold  at  Chicago  three 
sessions  for  the  hearing  of  causes  during  each  term,  beginning  on  the  first 
Tuesdays  in  October  and  January,  respectively,  and  the  second  Tuesday 
in  April. 

Eighth  circuit. — 1.  Three  terms  of  this  court  will  be  held  annually,  one 
at  the  city  of  St.  Paul  on  the  first  Monday  of  May,  one  at  the  city  of 
Denver,  on  the  first  Monday  of  September,  and  one  at  the  city  of  St.  Louis 
on  the  first  Monday  of  December. 

2.  Cases   from   Minnesota,   North  Dakota,   South  Dakota,  Nebraska,   Iowa, 
Kansas,  Missouri,  Arkansas,  and  Oklahoma,  in  which  transcripts  to  be  printed 
under   the   supervision   of   the   clerk   of   this   court   are   filed,   or   transcripts 
printed  before  certification   by  the  clerk   of  the   lower  court,   and   proof  by 
affidavit    or    admission    that    three    copies    of    the    printed    transcripts    have 
been   served  on   the  defendants   in   error   or   appellees,   or   their   counsel,   are 
filed  on   or   before  the   first   day   of   April,   and   cases   from   Colorado,   Utah, 
Wyoming,   and  ISew   Mexico   in   which   transcripts   to   be   printed   under   the 
supervision  of  the  clerk  of  this  court  are  filed,  or  transcripts  printed  before 
certification  by  the  clerk  of  the   lower  court  and  proof  by  affidavit  or  ad- 
mission  that   three   copies   of  the   printed   transcripts   have   been   served   on 
the   defendants   in   error  or   appellees,   or  their  counsel,   and   stipulations   of 
the  parties   for  their  hearing  at  the  May  term  in  St.  Paul   are   filed  on  or 
before  the  first  day  of  April,  and  those  only,  will  be  heard  at  the  succeed- 
ing May  term  of  the  court  in  St.  Paul. 

3.  Cases  from  Colorado,  Wyoming,  Utah,  and  New  Mexico  in  which  tran- 
scripts to  be  printed  under  the   supervision  of  the  clerk   of   this   court   are 
filed,   or   transcripts   printed   before   certification   by   the  clerk   of   the   lower 
court  and  proof  by  affidavit  or  admission  that  three  copies  of  the  printed 
transcripts  have  been  served  on  the  defendants  in  error  or  appellees,  or  their 
counsel,   are   filed   on   or   before   the   first   day   of   July  and   cases   from   the 
remainder  of  the  circuit  in  which  transcripts  to  be  printed  under  the  super- 
vision of  the  clerk  of  this  court  are  filed,  or  transcripts  printed  before  cer- 
tification by  the  clerk  of  the  lower  court  and  proof  by  affidavit  or  admission 
that  three  copies  of  the  printed  transcripts  have  been  served  on  the  defend- 
ants in  error  or  appellees,  or  their  counsel,  and  stipulations  of  the  parties 
for  their  hearing  at  the   September  term   in   Denver   are   filed  on  or  before 
the  first  day  of  July,  and  those  only,  will  be  heard  at  the  succeeding  Septem- 
ber term  in  Denver. 

4.  Cases   from   Minnesota,   North  Dakota,   South  Dakota,   Nebraska,   Iowa, 
Kansas,  Missouri,  Arkansas,  and  Oklahoma  in  which  transcripts  to  be  print- 
ed under  the  supervision  of  the  clerk  of  this  court  are  filed,  or  transcripts 
printed   before   certification   by   the   clerk   of   the   lower   court   and  proof   by 
affidavit  or  admission  that  three  copies  of  the  printed  transcripts  have  been 
served  on   the   defendants   in   error  or  appellees,   or   their   counsel,   are   filed 
on  or  before  the  first  day  of  October,  and  cases   from  Colorado,  Wyoming, 
Utah,  and  New  Mexico  in  which  transcripts  to  be  printed  under  the  super- 
vision   of   the   clerk   of   this    court    are    filed,   or   transcripts    printed    before 
certification  by  the  clerk  of  the  lower  court  and  proof  by  affidavit  or  admis- 


796  APPENDIX 

sion  that  three  copies  of  the  printed  transcripts  have  been  served  on  the 
defendants  in  error  or  appellees,  or  their  counsel,  and  stipulations  of  the 
parties  for  their  hearing  at  the  December  term  in  St.  Louis  are  filed  on  or 
before  the  first  day  of  October,  and  those  only,  will  be  heard  at  the  succeed- 
ing December  term  in  St.  Louis. 

5.  These  terms  of  the  court  may  be  adjourned  to  such  times  and  places 
as  the  court  may  from  time  to  time  designate. 

Ninth  circuit. — One  term  of  this  court  shall  be  held  annually  at  the  city 
of  San  Francisco  on  the  first  Monday  of  October,  and  shall  be  adjourned 
to  such  times  and  places  as  the  court  may  from  time  to  time  designate. 

RULE  4. 
QUORUM. 

1.  If,  at  any  time,  a  quorum  does  not  attend  on  any  day  appointed  for 
holding  it,  any  judge  who  does  attend  may  adjourn  the  court  from  time  to 
time,  or,  in  the  absence  of  any  judge,  the  clerk  may  adjourn  the  court  from 
day  to  day.     If,   during  a  term,   after   a  quorum   has   assembled,   less   than 
that  number  attend  on  any  day,  any  judge  attending  may  adjourn  the  court 
from  day  to  day  until  there  is  a  quorum,  or  may  adjourn  without  day. 

2.  Any  judge   attending  when   less   than   a   quorum   is   present  may   make 
all  necessary  orders  touching  any  suit,  proceeding,  or  process   depending  in 
or  returned  to  the  court,  preparatory  to  hearing,  trial,  or  decision   thereof. 

In  addition  to  those  enumerated  the  marshal  or  his  deputy  may  adjourn 
the  court  from  day  to  day  in  the  First  circuit. 
In  the  Sixth  circuit  §  2  is  omitted. 

RULE    5. 
CLERK. 

1.  The    clerk's    office    shall    be    kept    at    the    place    designated    in    the    act 
creating  the  court  at  which  a  term   shall   be  held  annually. 

2.  The  clerk   shall   not   practice,   either   as   attorney   or  counselor,   in   this 
court   or   in   any   other   court   while   he   shall   continue   to   be   clerk   of   this 
court. 

3.  He  shall,  before  he  enters  on  the  execution  of  his  office,  take  an  oath 
in  the  form  prescribed  by  §  794  of  the  Revised  Statutes  and  shall  give  bond 
in  a  sum  to  be  fixed,  and  with  sureties  to  be  approved,  by  the  court,  faith- 
fully   to    discharge   the   duties    of    his    office   and    seasonably    to    record    the 
decrees,  judgments,  and  determinations  of  the  court.     A  copy  of  such  bond 
shall  be  entered  on  the  journal  of  the  court,  and  the  bond  shall  be  deposited 
for  safe-keeping  as  the  court  may  direct. 

4.  He  shall  not  permit  any  original  record  or  paper  to  be  taken  from  the 
courtroom  or  from  the  office,  without  an  order  from  the  court. 

In  the  Fifth  circuit  the  amount  of  the  bond  is  fixed  at  $10,000.  In 
the  others  it  is  fixed  by  the  court. 

Section  1  in  the  Third  circuit  reads,  "in  the  city  of  Philadelphia."  In 

the  Fourth  circuit,  "at  Richmond,  Virginia."  In  the  Fifth  circuit,  "at  New 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  797 

Orleans,  Louisiana."     In  the  Sixth  circuit,  "at  Cincinnati."     In  the  Seventh, 
Kin    Chicago." 

In  the  Seventh  circuit  the  following  sections  are  added: 

5.  All  fees  collected  by  the  clerk,  which  are  not  properly  taxable  as  costs 
in  any  case,  and  which  are  not  by  law  required  to  be  by  him  w  deposited  in 
the  Treasury  of  the  United  States,  shall  constitute  a  fund  to  be  expended 
by    the    clerk,    under    the    direction    of    the    court,    in    the    purchase    of    law 
books  for  the  library  of  the  court. 

6.  The  clerk  shall   keep  an  accurate  and  itemized   account   of  all   moneys 
received   by   him   officially,   including   costs   and   fees   in   cases    in   the   court 
and   fees  and  moneys  collected  on  any  account  whatever,  and  shall  deposit 
the  same   as  received  daily  to  his  credit   as  clerk,  and  separately   from   all 
individual  accounts,  in  a  national  bank  designated  by  the  senior  judge,  and 
at   the   end  of  each   month,   and   whenever   required   by   the  court   or   senior 
judge,  shall  submit  to  the  senior  judge  a  detailed  report  showing  by  items 
all   moneys   received   and   all   moneys   paid   out   during   the   month,   and   the 
total   balances   on   hand   from   each   and  all   sources   of   receipt;    each   report 
shall    be   accompanied   by    a    statement,   over    the    signature    of    the   cashier 
or  other  officer  of  the  bank  of  which  the  deposit  is  kept,  of  the  amount  in 
the  bank  to  the  credit  of  the  clerk  at  the  close  of  the  last  day  included  in 
the  report. 

RULE    6. 
MARSHAL,  CRIER  AND  OTHER  OFFICERS. 

The  marshal  and  crier  shall  be  in  attendance  during  the  sessions  of  the 
court,  with  such  number  of  bailiffs  and  messengers  as  the  court  may  from 
time  to  time  order. 

This  is  contained   in  all  circuits. 

In  the  Second  circuit,  §  1  is  as  follows: 

1.  Every  marshal  and  deputy  marshal  shall,  before  he  enters  on  the 
duties  of  his  appointment,  take  an  oath  in  the  form  prescribed  by  §  782  of 
the  Revised  Statutes,  and  the  marshal  shall,  before  he  enters  on  the  duties 
of  his  office,  give  bond  in  a  sum  to  be  fixed,  and  with  sureties  to  be  ap- 
proved, by  the  court,  for  the  faithful  performance  of  said  duties  by  himself 
and  his  deputies.  Said  bond  shall  be  filed  and  recorded  in  the  office  of  the 
clerk  of  the  court. 

In  the  Sixth  circuit  §§  1  and  2  are  as  follows: 

1.  The  crier  and  bailiffs   of  the  district  court  of  any  district  where   this 
court  may  be  in  session,  are  hereby  authorized  to  act  also  during  such  ses- 
sion as  crier  and  bailiffs  of  this  court. 

2.  A   crier   or   bailiff   specially   appointed    for   this    court    shall,   before    he 
«nters  on  his  duties,  take  an  oath  in  the   form  prescribed  by  §  782  of  the 
Revised   Statutes. 

In  the  Seventh  circuit  §  1  is  the  same  as  §  2  in  the  Sixth  circuit. 


798  APPENDIX 

RULE    7. 
ATTORNEYS  AND  COUNSELORS. 

First,  Second,  Third,  Fourth,  and  Seventh  circuits. 

All  attorneys  and  counselors  admitted  to  practice  in  the  Supreme  Court 
of  the  United  States,  or  in  any  circuit  or  district  court  of  the  United  States, 
shall  become  attorneys  and  counselors  in  this  court  on  taking  an  oath  or 
affirmation  in  the  form  prescribed  by  rule  2  of  the  Supreme  Court  of  the 
United  States  and  on  subscribing  the  roll;  but  no  fee  shall  be  charged  there- 
for. 

In  the  Fourth  circuit  a  fee  of  $5  must  be  paid  to  the  clerk. 

The  rule  in  the  Fifth  circuit  is  as  follows: 

All  attorneys  and  counselors  admitted  to  practice  in  the  Supreme  Court 
of  the  United  States,  or  any  circuit  court  of  the  United  States,  upon  filing 
certificate  of  such  admission  with  the  clerk  of  this  court,  and  upon  taking 
an  oath  or  affirmation  in  the  following  form,  viz.: 

"I,    ,  do   solemnly  swear    (or  affirm)    that   I   will 

demean  myself  as  an  attorney  and  counselor  of  this  court  uprightly  and 
according  to  law,  and  that  I  will  support  the  Constitution  of  the  United 
States." 

(a  copy  of  which  shall  be  filed  with  the  clerk),  shall  become  attorneys  and 
counselors  of  this  court;  provided,  however,  that  any  attorney  or  coxmselor 
eligible  to  admission  as  an  attorney  and  counselor  of  this  court  may  be 
admitted  to  practice,  on  motion  in  open  court,  upon  taking  the  oath  or 
affirmation  as  prescribed,  and  subscribing  the  roll. 

On  each  admission  the  clerk  will  collect  ten  dollars  ($10)  to  be  applied 
to  the  purchase  of  law  books  for  the  use  of  the  court  and  bar. 

Sixth  circuit. — An  attorney  and  counselor  admitted  to  practice  and  in  good 
standing  in  the  Supreme  Court  or  in  a  district  court  of  the  United  States, 
or  in  the  court  of  last  resort  in  the  state  of  his  residence,  may  become  attor- 
ney and  counselor  in  this  court  on  taking  an  oath  or  affirmation  as  prescribed 
by  rule  2  of  the  Supreme  Court  of  the  United  States,  and  upon  subscribing 
the  roll.  The  fee  for  such  admission  shall  be  $10.  Every  person  taking  the 
oath  and  paying  such  fee  shall  be  entitled  to  a  certificate  of  his  admission, 
signed  by  the  clerk. 

Eighth  circuit. — 1.  All  attorneys  and  counselors  admitted  to  practice  in 
the  Supreme  Court  of  the  United  States,  or  in  any  circuit  court  or  district 
court  of  the  United  States,  or  in  the  supreme  court  of  any  state  in  this 
circuit,  may,  upon  motion  of  some  member  of  the  bar  of  this  court,  be 
admitted  as  attorneys  and  counselors  in  this  court  on  taking  an  oath  or 
affirmation  in  the  form  prescribed  by  rule  2  of  the  Supreme  Court  of  the 
United  States  and  on  subscribing  the  roll;  but  no  fee  shall  be  charged  there- 
for. 

2.  And  any  attorney  and  counselor  admitted  to  practice  in  the  Supreme 
Court  of  the  United  States  or  in  the  supreme  court  of  any  state  or  in  the 
district  or  circuit  courts  of  the  United  States  for  this  circuit,  may  be  ad- 
mitted by  order  of  this  court  to  practice  and  may  be  enrolled  as  an  attorney 
and  counselor  of  this  court,  thirty  days  after  he  furnishes  to  the  clerk 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  799 

of  this  court  a  certificate  of  a  clerk  or  judge  of  any  one  of  the  courts  named 
that  the  applicant  is  an  attorney  of  any  one  of  said  courts;  and  upon  sub- 
scribing and  forwarding  to  the  clerk  the  following  oath:  "I  do  solemnly 
swear  (or  affirm)  that  I  will  demean  myself  as  an  attorney  and  counselor 
of  the  circuit  court  of  appeals  for  the  eighth  circuit,  uprightly  and  according 
to  law;  and  that  I  will  support  the  Constitution  of  the  United  States.  So 
help  me  God." 

Ninth  circuit. — All  attorneys  admitted  to  practice  in  the  Supreme  Court 
of  the  United  States,  or  in  any  district  court  of  the  ninth  circuit,  shall  be 
deemed  attorneys  of  the  circuit  court  of  appeals  for  the  ninth  circuit;  but 
such  attorneys,  on  or  before  their  first  appearance  in  open  court,  in  said 
court,  shall  take  an  oath  or  affirmation,  in  the  form  prescribed  by  rule  2 
of  the  Supreme  Court  of  the  United  States  and  subscribe  the  roll  of  attor- 
neys. All  other  persons  who  have  been  admitted  to  practice  in  the  highest 
court  of  any  state  or  territory,  upon  presenting  satisfactory  evidence  of 
good  moral  character  and  fair  professional  standing,  may  be  admitted  to 
practice  in  said  court,  upon  taking  the  oath  so  prescribed,  and  subscribing 
the  roll  of  attorneys. 

RULE    8. 
PRACTICE. 

The  practice  shall  be  the  same  as  in  the  Supreme  Court  of  the  United 
States,  as  far  as  the  same  shall  be  applicable. 

RULE    9. 

PROCESS. 

All  process  of  this  court  shall  be  in  the  name  of  the  President  of  the 
United  States,  and  shall  be  in  like  form  and  tested  in  the  same  manner 
as  process  of  the  Supreme  Court. 

In  the  Sixth  circuit  this  is  contained  in  rule  8,  and  the  following  is  rule 
9  in  that  circuit: 

SERVICE  OF  PAPERS. 

1.  Copies  of  all  papers  or  proceedings  filed  by  any  party  in  any  cause  shall. 
at   or   before  the   time   of   filing,   be   served   upon   counsel   representing   each 
adverse    interest,    and    proof    or    acknowledgment    of    such    service    shall    be 
endorsed  upon  each  paper  filed.     The  clerk  may  insist  upon  such  proof  as  a 
prerequisite  to  filing,  or  may  file  and  require  the  prompt  furnishing  of  such 
proof,  as  he  may  in  each  case  think  proper. 

2.  Service  may  be   personal   or  by   mail.     If   personal,   it  shall   consist  of 
delivery  at  his  office  to  counsel  or  to  a  clerk  therein.     If  by  mail,  it  shall 
consist  in  depositing  the  same  in  the  postoffice  with  postage  paid,  addressed 
to  the  counsel  at  his  postoffice  address,  which  address  shall  include  his  street 


800  APPENDIX 

and  number,  unless  the  same  are  unknown.    Each  proof  of  service  shall  show 
a  full  compliance  with  this  rule. 

RULE    10. 
BILL  OF  EXCEPTIONS. 

1.  The  judges  of  the  district  courts  shall  not  allow  any  bill  of  exceptions 
which  shall  contain  the  charge  of  the  court  at  large  to  the  jury  in  trials  at 
common  law  upon  any  general  exception  to  the  whole  of  such  charge.     But 
the  party, excepting  shall  be  required  to  state  distinctly  the  several  matters 
of  law  in  such  charge  to  which  he  excepts;   and  those  matters  of  law,  and 
those   only,   shall  be   inserted   in  the  bill   of  exceptions   and   allowed   by   the 
court. 

In  the  Third  circuit  the  following  is  added: 

Exceptions  to  the  charge  or  to  the  judge's  action  upon  the  requests  for 
instruction  shall  be  taken  immediately  on  the  conclusion  of  the  charge  before 
the  jury  retire,  shall  be  specified  in  writing  or  dictated  to  the  stenographer, 
and  shall  be  specific  and  not  general. 

2.  Exceptions  to  the   admission   or   rejection   of   evidence   shall   be   specific 
and  not  general,  and  the  bill  of  exceptions   to   such   admission   or   rejection 
shall  contain  only  so  much  of  the  evidence  admitted  or  offered  and  rejected 
as  is  necessary  for  the  presentation  and  decision  of  the  questions  saved  for 
review.     Unless  there  be  saved  a  question  which  requires  the  consideration 
of   all  the   evidence,   a   bill   of   exceptions   containing   all   of   it   shall   not   be 
allowed. 

In  the  Fourth  circuit  the  following  is  added: 

2.  Only  so  much  of  the  evidence  shall  be  embraced  in  a  bill  of  exceptions 
as  may  be  necessary  to  present  clearly  the  questions  of  law  involved  in  the 
rulings  to  which  exceptions  are  reserved,  and  such  evidence  as  is  embraced 
therein  shall  be  set  forth  in  condensed  and  narrative  form,  save  as  a  proper 
understanding  of  the  questions  presented  may  require  that  parts  of  it  be 
set  forth  otherwise. 

In  the  Sixth  circuit  the  following  is  the  rule: 

1.  The  assignments  of  error  required  by  rule  11  shall  be  filed  at  or  before 
the  settling  of  the  bill  of  exceptions.     The  evidence  in  a  bill  of  exceptions 
shall  not  be  set  forth  in  full,  but  shall  be  stated  in   simple  and  condensed 
form,  all  parts  not   essential  to  the  decision  of  some  one   of  the  questions 
presented  by  the  assignments  of  error  being  omitted,  and  the  testimony  of 
witnesses   being   stated   only   in   narrative   form,   save   that,   if   either   party 
desires  it  and  the  judge  so  directs,  any  part  of  the  testimony  shall  be  repro- 
duced in  the  exact  words  of  the  witness. 

2.  No  general  exception  to  the  whole  or  any  charge  to  a  jury  on  trials  at 
law   shall   be   allowed   in   any   bill   of   exceptions.      Exceptions   to   charge,   in 
order  to  be  allowed  in  a  bill  of  exceptions,  must  be  taken  before  the  jury 
retires  and  must  state  distinctly  the  several  matters  of  law  to  which  excep- 
tion is  taken.     In  cases  where  exception  is  taken  to  part  of  a  charge,  and 
such  exception  may  be  affected  by  other  parts  or  by  the  charge  as  a  whole, 
the  entire  charge  shall  be  included  in  the  bill  of  exceptions. 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  801 

In  the  Seventh  circuit  the  following  is  added: 

2.  A  bill  of  exceptions  shall  contain  of  the  evidence  only  such  a  statement 
as   is   necessary    for   the   presentation   and   decision   of   questions    saved    for 
review,  and  unless  there  be  saved  a  question  which  requires  the  considera- 
tion of  all  the  evidence,  a  bill  of  exceptions  containing  all  the  evidence  shall 
not   be  allowed. 

3.  No  document  shall  be  copied  more  than  once  in  a  bill  of  exceptions  or 
in  a  transcript  of  the  record  of  the  case,  but  instead  there  shall  be  inserted 
a  reference  to  the  one  copy  set  out.     A  motion  for  a  new  trial  and  orders 
and   entries   relating  thereto   shall   not   be   set   out   in   the   transcript  unless 
required  by  written  preecipe,  of  which  a  copy  shall  also  be  set  out. 

4.  The  cost  of  unnecessary  matter  in  the  bill  of  exceptions  or  transcript 
or  in  the  printed  record  shall  not  be  recovered  of  the  appellee  or  defendant 
in  error,  and   in  its  discretion  the  court  will  in  case  of  dispute  appoint  a 
referee  to  determine  and   report   what   was  necessary   therein,  and  will  tax 
the  cost  of  the  reference  as  shall  seem  just. 


RULE    11. 

ASSIGNMENT    OF    ERRORS. 

The  plaintiff  in  error  or  appellant  shall  file  with  the  clerk  of  the  court 
below,  with  his  petition  for  the  writ  of  error  or  appeal,  an  assignment  of 
•errors,  which  shall  set  out  separately  and  particularly  each  error  asserted 
and  intended  to  be  urged.  No  writ  of  error  or  appeal  shall  be  allowed 
until  such  assignment  of  errors  shall  have  been  filed.  When  the  error  alleged 
is  to  the  admission  or  to  the  rejection  of  evidence,  the  assignment  of  errors 
shall  quote  the  full  substance  of  the  evidence  admitted  or  rejected.  When 
the  error  alleged  is  to  the  charge  of  the  court,  the  assignment  of  errors  shall 
set  out  the  part  referred  to  totidem  verbis,  whether  it  be  in  instructions 
given  or  in  instructions  refused.  Such  assignment  of  errors  shall  form  part 
of  the  transcript  of  the  record  and  be  printed  with  it.  When  this  is  not 
done,  counsel  will  not  be  heard,  except  at  the  request  of  the  court;  and 
errors  not  assigned  according  to  this  rule  will  be  disregarded,  but  the  court, 
at  its  option,  may  notice  a  plain  error  not  assigned. 


RULE  12. 
OBJECTIONS  TO  EVIDENCE  IN  THE  RECORD. 

In  all  cases  of  equity  or  admiralty  jurisdiction,  heard  in  this  court,  no 
objection  shall  be  allowed  to  be  taken  to  the  admissibility  of  any  deposition, 
deed,  grant,  exhibit,  or  translation,  found  in  the  record  as  evidence,  unless 
objection  was  taken  thereto  in  the  court  below  and  entered  of  record;  but 
the  same  shall  otherwise  be  deemed  to  have  been  admitted  by  consent. 
Montg.-  -51. 


802  APPENDIX 

RULE     13. 
SUPERSEDEAS  AND  COST  BONDS. 

1.  Supersedeas  bonds  in  the  district  courts  must  be  taken  with  good  and 
sufficient  security,  that  the  plaintiff  in  error  or  appellant  will  prosecute  his 
writ  or   appeal   to   effect,   and   answer   all   damages   and   costs   if   he   fail   to 
make  his  plea  good.     Such  indemnity,  where  the  judgment  or  decree  is  for 
the  recovery  of  money  not  otherwise  secured,  must  be  for  the  whole  amount 
of  the  judgment  or  decree,   including  just  damages   for  delay,  and  interest 
and  costs  on  the  appeal;  but  in  all  suits  where  the  property  in  controversy 
necessarily  follows  the  suit,  as  in  real  actions  and  replevin,  and  in  suits  on 
mortgages,  or  where  the  property  is  the  custody  of  the  marshal  under  ad- 
miralty  process,   or   where   the   proceeds   thereof,   or   a   bond   for   the  ^value 
thereof,  is  in  the  custody  of  the  court,  indemnity  in  all  such  cases  will  be 
required  only   in  an  amount   sufficient  to  secure  the  sum   recovered   for  the 
use  and  detention  of  the  property,  and  the  costs  of  the  suit  and  damages 
for  delay  and  interest  and  costs  on  the  appeal. 

2.  On  all  appeals  from  any  interlocutory  order  or  decree  granting  or  con- 
tinuing an  injunction  in  a  district  court,  the  appellant  shall,  at  the  time  of 
the   allowance   of   said   appeal,   file   with   the   clerk   of   such   district   court   a 
bond  to  the  opposite  party  in  such  sum  as  such  court  shall  direct,  to  answer 
all  costs  if  he  shall  fail  to  sustain  his  appeal. 

In  the  Sixth  circuit  the  above  §  2  is  omitted,  and  the  above  rule  13  is  rule 
14  in  that  circuit. 

RULE  14. 
WRITS  OF  ERROR,  APPEALS,  RETURN,  AND  RECORD. 

1.  The  clerk  of  the  court  to  which  any  writ  of  error  may  be  directed 
shall  make  a  return  of  the  same  by  transmitting  a  true  copy  of  the  record, 
opinion  or  opinions  of  the  court,  bill  of  exceptions,  assignment  of  errors, 
and  all  proceedings  in  the  case,  under  his  hand  and  the  seal  of  the  court. 

In  the  Third  circuit,  §  1  is  as  follows: 

1.  Any  appeal  to  this  court,  or  writ  of  error  from  this  court,  allowable  by 
law,  may  be  allowed,  in  term  time  or  vacation,  by  the  circuit  justice,  or  by 
iiny  of  the  circuit  judges  within  this  circuit,  or  by  any  district  judge  within 
the  district  where  the  case  to  be  reviewed  was  heard  or  tried,  who  may  also 
take  the  proper  security,  sign  the  citation,  and,  if  he  deem  it  proper  so  to 
<lo,  grant  a  supersedeas  and  stay  of  execution  or  of  proceedings  pending  such 
writ  of  error  or  appeal. 

In  the  Fourth  circuit  §  1  is  as  follows: 

1.  The  clerk  of  the  court  to  which  any  writ  of  error  may  be  directed  shall 
(except  as  otherwise  provided  by  rule  23)  make  return  of  the  same,  by 
certifying  under  his  hand  and  the  seal  of  said  court,  in  accordance  with  the 
act  of  Congress  of  February  13,  1911  (36  Stat.  at  L.  901),  and  transmitting 
to  the  clerk  of  this  court  one  of  the  printed  transcripts  of  the  record  pro- 
vided for  by  said  act.  In  all  cases  of  appeal  and  also  in  all  cases  of  petition 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  803 

for  revision  in  bankruptcy  said  clerk  shall  likewise  certify,  seal,  and  trans- 
^mit  a  copy  of  the  printed  transcript  of  the  record  to  the  clerk  of  this  court. 
Rule  13  of  the  other  circuits  is  rule  14  in  the  Sixth  circuit. 
Section  1  is  contained  in  rule  13  in  the  Sixth  circuit,  as  follows: 

1.  An  appeal  from  or  writ  of  error  to  a  district  court  in  the  cases  pro- 
vided for   in   §§   128,  129   and   130  of   the   Judicial  Code   approved  March   3, 
1911,   may   be   allowed   in   term   time   or   in   vacation   by   the   circuit   justice, 
wherever   acting,   or   by   any   circuit   judge   acting   within   the   circuit,   or   by 
any  district  judge  acting  within  the  district  where  the  case  was  heard  and 
authorized  to  hold  court   in  that  district;   and  the  proper  security   may  be 
taken  and  the  citation  be  signed  by  him  and  he  may  also  grant  a  supersedeas 
and  stay  of  execution  or  of  proceedings  pending  such  writ  of  error  or  ap- 
peal. 

In  the  Seventh  circuit  the  following  is  added  to  the  above:  The  clerk 
may  require  of  the  appellant  or  plaintiff  in  error  a  written  prsecipe  stating 
in  detail  what  the  transcript  shall  contain,  and  when  a  praecipe  is  filed  shall 
insert  a  copy  thereof  in  the  transcript. 

2.  In  all  cases  brought  to  this  court  by  writ  of  error  or  appeal  to  review 
any  judgment  or  decree,  the  clerk  of  the  court  by  which   such  judgment  or 
decree  was  rendered  shall  annex  to  and  transmit  with  the  record  a  copy  of 
the  opinion  or  opinions  filed  in  the  case. 

In  the  Third  circuit  §  2  is  as  follows: 

2.  The  clerk  of  the  court  to  which  any  writ  of  error  may  be  directed,  or 
from  which  any  appeal  may  be  taken,  upon  being  paid  or  tendered  his  fees 
therefor,  shall  make  a  return  of  the  same  by  transmitting  a  true  copy  of 
the  record,  bill  of  exceptions,  assignment  of  errors,  and  all  proceedings  in 
the  case,  under  his  hand  and  the  seal  of  the  court. 

In  the  Fourth  circuit  §  2  is  as  follows: 

2.  In  every  printed  transcript  of  the  record  the  order  of  the  parts  thereof 
shall  substantially  follow  the  order  in  which  the  same  were  filed,  entered  or 
made,  and  shall  contain  a  copy  of  such  opinion  or  opinions  of  the  trial  judge 
as  may  have  been  filed.  It  shall  be  suitably  indexed,  and  where  any  deposi- 
tion or  report  of  evidence  requires  more  than  one  printed  page  the  name 
of  the  deponent  or  witness  shall  be  printed  at  the  top  of  each  page.  And 
the  foregoing  shall,  so  far  as  may  be  applicable,  apply  to  the  printed  addenda 
to  records  hereinafter  provided  for. 

In  the  Sixth  circuit  §  2  is  contained  in  rule  13,  as  follows: 

2.  Where  such  writ  of  error  is  duly  allowed  in  a  criminal  case,  the  dis- 
trict court  in  which  the  conviction  occurred,  or  this  court,  or  any  judge 
of  either  court,  shall  have  power,  after  the  citation  is  served,  to  admit  the 
accused  to  bail  in  such  amount  as  may  be  fixed. 

In  the  Eighth  circuit  the  following  is  added  to  the  above  in  section  2  "and 
in  cases  at  law  a  complete  copy  of  the  charge  of  the  court  to  the  jury." 

Section  2  in  the  Ninth  circuit  is  as  follows: 

2.  In  all  cases  brought  to  this  court  by  writ  of  error  or  appeal,  to  review 
any  judgment  or  decree,  the  clerk  of  the  court  by  which  such  judgment  or 
decree  was  rendered  shall  annex  to  and  transmit  with  the  record  the  original 


804:  APPENDIX 

writ  of  error  and  citation,  or  citation   issued  in  the  cause,  and  a  certificate 
under  seal  stating  the  cost  of  the  record  and  by  whom  paid. 

3.  No  case  will  be  heard  until  a  complete  record,  containing  in  itself,  and 
not  by  reference,  all  the  papers,  exhibits,  depositions,  and  other  proceedings 
which  are  necessary  to  the  hearing  in  this  court  shall  be  filed. 

In  the  Third  circuit  §  3  is  the  same  as  §  2  as  given  above. 

In  the  Fourth  circuit  §  3  is  as  follows: 

3.  Except  in  cases  where  counsel  shall  agree  by  written  and  signed  stipu- . 
lation, — which  shall  be  a  part  of  the  record, — as  to  what  portions  of  the 
record  and  proofs  of  the  case  in  the  court  below,  shall  be  printed  in  the 
transcript  of  the  record  for  use  in  this  court,  the  trial  judge  shall  have  the 
power,  upon  application  after  reasonable  notice  to  the  opposing  party  or 
his  counsel,  to  determine  what  shall  be  included  in  such  transcript,  and 
his  determination  shall  be  signed  by  him,  and  made  part  of  the  record;  he 
shall  include  in  such  signed  paper,  such  portions  of  the  record  and  of  the 
proofs  as  he  may  deem  material  for  the  proper  disposition  of  the  questions 
to  be  decided  by  this  court,  as  also  such  parts  as  are  specially  required  by 
these  rules.  But  if  any  party  desires  printed  any  document  or  part,  of 
the  record  or  proofs  directed  by  the  trial  judge  to  be  omitted,  such  party 
may  print  the  same  under  separate  cover  and  cause  it  to  be  certified  and 
transmitted  to  this  court  as  an  addendum  to  the  record.  Such  printing  and 
certification  shall  be  primarily  at  the  cost  of  the  party  who  requires  it. 
The  cover  sheet  of  such  addendum  shall  contain  the  title  of  the  cause  and 
shall  plainly  show  that  it  is  an  addendum  to  the  transcript  and  shall  show 
at  whose  instance  it  was  printed. 

In  the  Eighth  circuit  §  3  is  as  follows: 

3.  No  case  will  be  heard  until  twenty-five  copies  of  the  printed  transcript 
of  the  record,  containing  in  themselves,  and  not  by  reference,  all  the  papers, 
exhibits,  depositions,  sketches,  drawings,  photographs,  maps,  blue  prints  and 
other  proceedings,  which  are  necessary  to  the  hearing  in  this  court,  printed 
title  pages   in  the  form   prescribed   in   §   5  of  rule  26,  chronological   printed 
indexes  of  each  and  every  item  of  their  contents  specifying  the  pages  where 
evidence,  testimony  and  exhibits  including  those  in  the  body  of  any  plead- 
ing, order  or  bill  of  exceptions  may  be  found  and  briefly  naming  or  describ- 
ing each  exhibit  in  addition  to  its  number  together  with  a  statement  of  the 
numbers,  names  and  dates  of  issue  of  any  patents,  shall  have  been  filed  in 
this  court. 

4.  Whenever  it  shall  be  necessary  or  proper,  in  the  opinion  of  the  presiding 
judge  in  any  district  court,  that  original  papers  of  any  kind  should  be  in- 
spected in  this  court  upon  writ  of  error  or  appeal,  such  presiding  judge  may 
make  such  rule  or  order  for  the  safekeeping,  transporting  and  return  of  such 
original  papers  as  to  him  may  seem  proper;  and  this  court  will  receive  and 
consider  such  original   papers   in  connection  with  the  transcript  of  the  pro- 
ceedings. 

In  the  Third  circuit  §  4  is  the  same  as  §  3  as  given  above. 

In  the  Sixth  circuit  this  section  is  contained  in  §  6  of  rule  15. 

5.  All  appeals,  writs  of  error,  and  citations  must  be  made  returnable  not 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  805 

exceeding  thirty  days  from  the  day  of  signing  the  citation,  whether  the  return 
day  fall  in  vacation  or  in  term  time,  and  be  served  before  the  return  day. 

In  the  Third  circuit  §  5  is  the  same  as  §  4  as  given  above. 

In  the  Fourth  circuit  the  word  "thirty"  is  changed  to  "forty." 

In  the  Sixth  circuit  this  section  is  contained  in  §  1  of  rule  15. 

In  the  Seventh  circuit  the  following  is  added  to  the  above: 

"If  a  party  be  nonresident  the  citation  and  any  other  writ  or  notice  neces- 
sary in  the  prosecution  of  the  appeal  or  writ  of  error  may  be  served  upon 
such  party's  counsel  or  attorney  of  record,  who  for  such  purpose  may  not 
be  discharged  unless  another  resident  may  be  designated  of  record  in  the 
case  upon  whom  service  may  be  made." 

In  the  Eighth  circuit  the  word  "thirty"  is  changed  to  "sixty." 

In  the  Ninth  circuit  this  is  the  last  section  of  rule  14. 

6.  The  record  in  cases  of  admiralty  and  maritime  jurisdiction  shall  be 
made  up  as  provided  in  general  admiralty  rule  No.  52  of  the  Supreme  Court. 

In  the  First  circuit  the  following  is  added  to  §  6: 

The  testimony  in  such  a  record  shall  embrace  the  viva  voce  proof  in  the 
district  court,  if  the  same,  or  the  substance  thereof,  has  been  reduced  to 
writing  with  the  approval  of  its  judge.  The  reasonable  cost  of  so  reducing 
the  same  to  writing  may  be  taxed  as  a  part  of  the  costs  of  the  record,  except 
so  far  as  .allowed  as  costs  in  the  district  court. 

This  section  is  the  last  section  of  rule  14  in  the  Second  circuit. 

In  the  Third  circuit,  §  6  is  as  follows,  and  §  6  as  given  above  is  §  7  in 
that  section: 

6.  All  appeals,  writs  of  error,  and  citations  must  be  made  returnable  not 
exceeding   thirty   days   from   the   day   of   signing   the   citation,   whether   the 
return  day  fall  in  vacation  or  in  term  time,  and  be  served  before  the  return 
day;    but    the   citation    must   be    signed,    and    the    bond    for    costs    must    be 
approved   and    filed,   and    the    assignments    of    error,    immediately   after    the 
appeal   or   writ   of   error   is  allowed:    Provided,   however,   That  every   appeal 
taken    from   an   interlocutory   decree,   under   the   seventh   section   of   the   act 
entitled  "An  Act  to  Establish  Circuit  Court  of  Appeals,  and  to  Define  and 
Regulate  in  Certain  Cases  the  Jurisdiction  of  the  Courts  of  the  United  States, 
and  for  other   Purposes,"  approved  March  3.   1891,  and   amendments  to  said 
section,   shall   be   made   returnable   in    ten   days   from   the   allowance   of   the 
appeal  and  the  signing  of  the  citation. 

This   is  the  last  section  of  rule  14   in   the  Third   circuit,  and   also  in   the 

Fifth  circuit,  Seventh  circuit,  and  Eighth  circuit. 

In  the  Sixth  circuit  this  section  is  contained  in  §  7  of  rule  15,  as  follows: 
The  records  in  cases  of  admiralty  and  maritime  jurisdiction  shall  be  made 

up  in  the  same  manner,  as  nearly  as  practicable,  as  are  the  records  in  equity 

cases. 

In  the  First  circuit  the  remainder  of  rule  14  is  as  follows: 

7.  Further  proof  in   instance  causes   in   admiralty  shall   include  only   that 
which  could  not  with  diligence  have  been  had  at  the  trial  below,  or  which 
was    there  rejected,   or   was   omitted   through    misapprehension,   provided   the 
evidence  be  accompanied  with  a  certificate  of  counsel  showing  reasonable  ex- 


806  APPENDIX 

cuse  for  the  misapprehension.  Except  by  order  of  the  court  first  obtained, 
merely  cumulative  proofs  shall  not  be  so  taken;  but  for  this  purpose  the 
evidence  of  witnesses  who  had  different  duties,  interests,  or  opportunities  of 
observation,  will  not  ordinarily  be  held  cumulative  in  cases  of  collision  or 
other  maritime  tort. 

8.  Such   further  proof   may   be  taken   after  the  appeal   is  allowed,   in   the 
manner  provided  by  law  for  depositions  de  bene  esse,  or  by   any   examiner 
appointed   by   any   circuit   or   district   judge,   or   selected   by    the   parties,   or 
upon   interrogatories  and  commissions  as   provided   in   rule  44   of   the  circuit 
courts  of  this  circuit,  mutatis  mutandis.     It  must  be  taken  and   filed   forth- 
with after  it  is  obtainable,  but  it  cannot,  except  by  order  of  the  court,  be 
taken   or   filed   within   thirty   days   before   any   session   at   which    the    cause 
may  be  heard  as  provided   in  paragraph   2   of   rule   17,  nor   thereafterwards 
until  the  cause  has  been  postponed  to  the  next  term  or  session. 

9.  Objections  to  further  proof  shall  be   filed  with  the  magistrate  and  re- 
turned with  the   evidence.     Within  seven   days  after  the  evidence   is   taken, 
the  party  so  objecting  may  file  in  print  a  motion  to  suppress  the  same,  with 
a   copy   of  the  objections  and  a  brief.     The  other  party   may   within   seven 
days  thereafter  file  in  print  a  counter-statement  and  brief.     The  objections 
and   counter- statement,  as   far   as   they   contain  matters   of   fact   dehors  the 
record,  shall  be  verified  by  affidavit.     The  court  will  consider  the  objections 
in  advance  of  the  trial,  or  in  connection  therewith,  as  it  may  in  each  case 
determine,   and   without  oral   argument,   and   will   order   suppressed   evidence 
not  rightfully  taken.     The  party  taking  the  evidence  so  suppressed  shall  pay 
the  costs  arising  therefrom,  including  the  printing  thereof. 

10.  Nothing   herein    shall    exclude    applications    for   leave   to   take    further 
proof,  or  objections  thereto,  in  advance  ot  the  taking  thereof,  or  objections 
touching  the  formalities  of  taking  it;  but  the  latter  must  be  brought  to  the 
attention  of  the  court  forthwith  after  the  evidence  is  filed. 

In  the  Fourth  circuit  the  remainder  of  rule  14  is  as  follows: 
No  transcript  of  the  record  and  proofs  shall  (unless  it  be  specifically  other- 
wise ordered  by  the  trial  judge)  contain  a  copy  of  the  petition  for  appeal, 
the  order  granting  writ  of  error  or  appeal,  the  writ  of  error,  the  appeal 
bond,  the  citation,  the  return  of  service  or  waiver  of  service  of  citation.  In 
lieu  thereof  the  originals  of  said  documents  shall  be  certified  to  this  court 
within  forty  days  of  the  date  of  the  citation  (to  be  returned  to  the  court 
below  with  the  mandate  of  this  court),  and  in  said  transcript  there  shall 
be  inserted  a  memorandum  stating  the  date  of  the  petition  for  writ  of  error 
or  for  appeal,  the  date  of  the  order  granting  writ  of  error  or  allowing  appeal, 
the  date  of  the  writ  of  error  and  date  when  copy  thereof  or  copy  of  order 
allowing  appeal  is  lodged  in  the  office  of  the  clerk  of  the  court  below  for 
adverse  parties,  the  date,  penalty,  the  names  of  the  obligors,  the  condition 
(whether  for  payment  of  costs  and  damages  or  for  costs  alone)  of  the  appeal 
bond,  the  date  of  the  citation,  and  the  date  of  the  service  thereof  or  of  the 
waiver  of  service  thereof. 

i\o  general  replication  in  equity  shall  be  copied  into  the  transcript  of  the 
record,  but  in  lieu  thereof  there  shall  be  inserted  a  memorandum  showing 
the  date  of  filing  of  such  replication  and  by  whom  filed.  When  a  case  has 
by  writ  of  error  or  appeal  been  brought  to  this  court  the  second  time,  there 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  807 

shall  only  be  copied  in  the  record  the  proceedings  subsequent  to  the  former 
writ  of  error  or  appeal.  It  shall  be  the  duty  of  the  trial  judge  in  determin- 
ing what  shall  constitute  said  transcript  of  the  record,  to  direct  the  omission 
of  all  matter  which  in  his  judgment  is  unnecessary  to  the  presentation  of 
the  issues  to  be  passed  upon  by  this  court  and  especially  to  prevent  un- 
necessary duplications  in  such  transcript.  And  the  clerk  below  shall  not 
certify  any  transcript  of  the  record  and  proofs  unless  it  contains  either  the 
stipulation  of  counsel  or  the  determination  of  the  trial  judge  mentioned  in 
§  3  of  this  rule. 

Whenever  the  printed  transcript  of  the  record  or  any  addendum  thereto 
as  certified  by  the  clerk  of  the  court  below  shall  contain  any  corrections  or 
insertions,  it  shall  be  the  duty  of  the  party  filing  the  printed  transcript  or 
addendum  in  this  court  to  correct  all  the  .copies  of  the  same  so  as  to  cor- 
respond with  the  certified  transcript  or  addendum. 

RULE    15. 
TRANSLATIONS. 

Whenever  any  record  transmitted  to  this  court  upon  a  writ  of  error  or 
appeal  shall  contain  any  document,  paper,  testimony  or  other  proceeding 
in  a  foreign  language,  and  the  record  does  not  also  contain  a  translation 
of  such  document,  paper,  testimony  or  other  proceedings,  made  under  the 
authority  of  the  inferior  court,  or  admitted  to  be  correct,  the  record  shall 
not  be  printed;  but  the  case  shall  be  reported  to  this  court  by  the  clerk 
and  the  court  will  thereupon  remand  it  back  to  the  inferior  court,  in  order 
that  a  translation  may  be  there  supplied  and  inserted  in  the  record. 

In  the  Third  circuit,  rule  15  as  here  given  is  rule  16,  and  rule  15  in  that 
circuit  is  as  follows: 

BAIL  IN  ERROR. 

1.  Where  a  writ  of  error  has  been  allowed  in  a  criminal  case,  the  justice 
or  judge  who  allowed  the  writ,  or  any  judge  of  the  court  which  entered 
the  judgment  to  be  reviewed,  shall  have  power  to  admit  the  plaintiff  in 
error  to  bail  for  his  appearance  in  such  court  on  the  determination  of  the 
proceedings  on  the  writ  of  error  to  abide  by  and  obey  any  order  that  may 
be  made  therein.  The  bond  or  recognizance  for  such  appearance  shall  be 
substantially  in  the  following  form: 

United  States  of  America,  ) 

.  .District  of. . 


We    (here   insert   name  of  defendant),   residing  at    

and    (here   insert  the  name  of  surety),  residing  at    

in   the   state  of    ,  . .  . ,  acknowledge   ourselves   to   be 

jointly  and  severally  indebted  to  the  United  States  of  America  in  the  sum 

of   dollars,  lawful  money  of  the  United  States 

of  America,  to  be  levied  of  our  goods  and  chattels,  lands  and  tenements,  upon 


APPENDIX 

this  condition:     That  if  the  said ,  the  defendant. 

upon  whose  application  a  writ  of  error  has  been  allowed  by  the  United 
States  circuit  court  of  appeals  for  the  third  circuit  and  is  now  pending, 
shall  be  and  appear  at  the  district  court  of  the  United  States  for  the- 

district   of    upon   the  determination 

of  the  proceedings  on  said  writ  of  error,  and  the  receipt  and  filing  of  a 
mandate  or  other  process  or  certificate  showing  the  disposition  thereof  by 
the  said  court  of  appeals,  or,  within  five  days  thereafter,  to  answer  and  obey 
whatever  final  order  or  judgment,  except  as  to  costs,  shall  be  made  in  the 
premises,  and  not  depart  said  court  without  leave  thereof,  then  this  recog- 
nizance to  be  void;  otherwise,  to  remain  in  full  force  and  virtue. 

(t.  s.) 

(L.  s.) 

(L.  s.) 

Taken,  acknowledged    and   subscribed,   this    day   of 

A.  D.  191 .  .  . ,  in  open  court. 


Clerk  of  District  Court. 

In  the  Sixth  circuit,  rule  15  is  as  follows,  and  there  is  no  provision  relat- 
ing to  translations;  the  omitted  sections  are  contained  under  rule  14,  herein: 

2.  The  clerk  of  the  district  court  shall  make  return  to  any  writ  of  error 
to,   or   appeal    from,   that   court,   by   transmitting,   certified   under   his    hand: 
and   the  seal  of  the  court,  a  transcript  of  the  record  in  the  district   court, 
prepared  as  directed  by  other  provisions  of  this  rule.     He  shall   make  such 
return  on   or  before  the   return   day,  unless   the   time   therefor   be   extended 
as  otherwise  provided  in  these  rules. 

3.  In  all  appeals,  not  in  admiralty   (and  save  in  cases  under  general  equity 
rule  77),  the  transcript — the  contents  of  which  are  to  be  determined  pursu- 
ant to  clauses   (a)   and   (c)   of  general  equity  rule  75   (Note  1) — shall  always 
include:    (1)   the   statement  of   evidence;    (2)    the  clerk's  certificate   showing 
what   portions  are   included   by   request   of   each   party;    (3)    any   opinion   or 
memorandum   filed   by   the  judge   pertaining   to   the   matter   involved   in   the 
appeal;    (4)    the  pleadings  affecting  the   decree  or  order  appealed   from,  and 
such   order   or   decree;    (5)    all   proceedings   relating   to   the   appeal   and    the 
security  given   thereon,  together   with  a   copy  of   the  citation,   if   one   there 
was,  and  the  evidence  of  service;    (6)   in  cases  removed  from  the  state  court, 
the  full  transcript  on  removal;   and    (7)    in  bankruptcy,   shall   also  contain, 
the  petition   for  adjudication  and  the  order  thereon.     It   shall  omit:    (1)    all 
formal  proceedings  to  bring  into  court  parties  who  afterwards  appear  gen- 
erally, unless  such  proceedings  are   involved  in  the  desired  review;    and   {2) 
all  motions  or  petitions  filed  and  all  affidavits  in  connection  therewith,  and 
all   orders  made   and   proceedings   had   thereon,  unless   such   matters   are   in- 
volved in  the  desired  review.     It  shall  carry,  at  the  beginning  of  each  paper, 
the  name  thereof,  and  the  date  when  it  was  filed,  omitting  the  title  of  the 
court   and   the   cause   and   all    formal   endorsements    (Note    2).      Orders    and 
decrees   shall   carry  a  short,  descriptive  title   with   the   date   and   entry   and 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  800 

the  name  of  the  judge,  but  without  other  caption.      (Note   3.)      Exhibits  or 
'documents  shall  not  be  duplicated,  but  a  cross  reference  shall  be  made. 

4.  Upon  writ  of  error  from  this  court,  the  contents  of  the  transcript  shall 
be  determined  and  the  transcript  made  up  in  the  same  manner  provided  by 
clauses  (a)   and   (c)   of  general  equity  rule  75  and  clause  3  of  this  rule,  both 
applied  as  near  as  may  be  to  an  action  at  law.     Such  transcript  shall  contain 
also  a  copy  of  the  bill  of  exceptions,  the  assignments  of  error  and  the  writ 
of  error. 

5.  The   original   citation   with    proof   of   service   and   the   original   writ   of 
error  shall  be  filed  with  the  clerk  of  the  court  below  and  be  by  him  trans- 
mitted with  the  transcript  to  the  clerk  of  this  court. 

8.  On  motion  duly  made,  or  on  its  own  motion,  this  court  will  order  por- 
tions to  be  stricken  from  the  transcript,  or  additions  to  be  made  thereto  by 
supplementary  return,  as  may  appear  proper. 

RULE    16. 
DOCKETING    CASES. 

1.  It   shall   be   the  duty   of   the   plaintiff  in   error   or   appellant   to   docket 
the   case    and   file   the   record    thereof    with   the    clerk   of   this    court    by    or 
before  the  return  day,  whether  in  vacation  or  in  term  time.     But  for  good 
cause  shown,   any  judge  of  this   court   may   enlarge   the  time  by  or  before 
its  expiration,  the  order  of  enlargement  to  be  filed   with  the  clerk   of  this 
court.     If  the  plaintiff  in  error  or  appellant  shall   fail  to  comply  with  this 
rule,  the  defendant  in  error  or  appellee  may   have   the  cause  docketed   and 
dismissed   upon   producing  a   certificate,   whether   in   term   time   or  vacation, 
from  the  clerk  of  the  court   wherein  the  judgment   or   decree   was  rendered, 
stating  the  case  and  certifying  that  such  writ  of  error  or  appeal  has  been 
duly   sued   out   or   allowed.     And   in   no   case    shall    the   plaintiff   in   error   or 
appellant  be  entitled  to  docket  the  case  and  file  the  record  after  the  same 
shall  have  been  docketed  and  dismissed  under  this  rule,  unless  by  order  of 
this  court. 

2.  But  the  defendant  in  error  or  appellee  may,  at  his  option,  docket  the 
case  and  file  a  copy  of  the  record  with  the  clerk  of  this  court,  and   if  the 
case  is  docketed  and  a  copy  of  the  record  filed  with  the  clerk  of  this  court 
by  the  plaintiff  in  error  or  appellant  within  the  period  of  time  above  limited 
and  prescribed  by  this  rule,  or  by  the  defendant  in  error  or  appellee  at  any 
time  thereafter,  the  case  shall  stand  for  argument  at  the  term. 

3.  Upon   the  filing  of  the  transcript   of  a   record   brought  up   by   writ   of 
error  or  appeal,  the  appearance  of  the  counsel   for  the  party  docketing  the 
case   shall   be   entered. 

In  the  First  circuit  the  following  is  added  to  section  1:  "after  notice  to 
the  adverse  party." 

In  the  Third  circuit  the  above  is  rule  17,  and  the  following  is  added  to 
§  3:  "and  on  or  before  the  return  day  of  the  citation  the  counsel  for  the 
appellee  or  defendant  in  error  shall  also  enter  appearance  for  the  appellee 
or  defendant  in  error." 


810  APPENDIX 

In  the  Fourth  circuit,  §§  1  and  5  are  as  follows,  and  the  remainder  is 
the  same,  as  the  above  beginning  in  the  middle  of  §  1:  "If  the  plaintiff  in 
error  or  appellant." 

1.  Except  as  otherwise  provided  by  rule  23,  it  shall  be  the  duty  of  the 
appellant,  plaintiff  in  error,  or  petitioner  for  revision  in  bankruptcy  to  cause 
to  be  printed  and  suitably  indexed  the  transcript  of  the  record  (as  well  as 
any  addendum  to  the  record  required  by  such  party)  and  to  deliver  the 
same  to  the  clerk  or  deputy  clerk  of  the  court  below  for  certification,  seal- 
ing and  transmission  to  this  court  within  forty  days  from  the  date  of  the 
citation  or  the  filing  of  the  petition  for  revision;  and  also  on  or  before  the 
expiration  of  the  said  forty  days  to  file  with  the  clerk  of  this  court  at  least 
twenty- four  printed  copies  of  the  said  transcript  and  addendum  above- 
mentioned,  if  any.  He  shall  also  at  the  same  time  furnish  to  the  adverse 
party  at  least  three  copies  of  the  printed  transcript  of  the  record,  includ- 
ing any  addendum  thereto  printed  at  his  instance.  It  shall  also  be  the  duty 
of  appellant,  plaintiff  in  error,  or  petitioner  for  revision  to  docket  the 
cause  in  this  court  on  or  before  the  return  day,  whether  in  term  time  or 
vacation.  In  case  any  appellee  or  defendant  in  error  shall  have  required 
an  addendum  to  the  transcript  of  record,  it  shall  be  the  duty  of  such  party 
to  file  in  the  office  of  the  clerk  of  this  court,  on  or  before  the  said  return 
day,  at  least  twenty-four  printed  copies  of  such  addendum  as  well  as  one 
additional  copy  thereof,  which  shall  have  been  duly  certified  by  the  clerk 
of  the  court  below ;  and  such  party  shall  at  the  same  time  furnish  to  the 
adverse  party  at  least  three  copies  of  said  printed  addendum. 

The  time  within  which  any  of  the  acts  in  this  section  above  mentioned 
are  required  to  be  done  may  for  good  cause  shown  be  enlarged  by  the  justice 
or  judge  who  signed  the  citation  or  any  judge  of  this  court,  provided  the 
order  of  enlargement  be  made  prior  to  the  expiration  of  such  time;  such 
order  to  be  filed  with  the  clerk  of  this  court. 

5.  Defendants  in  error,  or  appellees,  are  required,  at  the  time  of  entering 
their  appearance  by  attorney,  to  make  a  deposit  of  $20  for  account  of  costs 
to  be  incurred  by  them  in  this  court.  In  case  of  affirmance,  or  dismissal, 
when  all  costs  shall  have  been  paid  by  the  plaintiff  in  error,  or  appellant, 
the  said  deposit  shall  be  returned.  This  is  allowable  in  all  cases  except  when 
the  United  States  is  defendant  in  error  or  appellee. 

In  the  Fifth  circuit  the  following  is  added  to  the  above: 

4.  In   all   cases   the   plaintiff   in   error   or   appellant,    on   docketing   a   case 
and  .filing   the   record,   shall   enter   into   an    undertaking   to   the   clerk,   with 
surety  to  his  satisfaction  for  the  payment  of  his  fees,  or  otherwise  satisfy 
him  in  that  behalf. 

In  the  Sixth  circuit  the  following  is  added  to  §  1:  "And  at  the  time  of 
filing  the  record  the  appellant  shall  deposit  with  the  clerk  the  sum  of 
thirty-five  dollars  as  security  for  costs,  except  in  cases  in  which  the  proper 
showing  is  made  and  an  order  of  this  court  is  entered  thereon  allow- 
ing the  cause  to  proceed  in  forma  pauperis,  and  except  in  the  cases  where, 
by  statute,  advance  payment  of  costs  is  not  required." 

And  the  following  sections  are  added: 

5.  All  subsequent  papers  filed,  orders  made  and   proceeding  had,  shall   be 
noted  upon  the  docket. 


•  RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  811 

6.  Whenever  counsel  for  appellant  and  appellee  shall,  in  vacation,  sign 
and  file  with  the  clerk  an  agreement  in  writing  directing  the  case  to  be 
dismissed  and  specifying  the  terms  as  to  costs,  on  which  terms  it  is  to 
be  dismissed,  and  shall  pay  to  the  clerk  any  fees  due,  he  shall  enter  the 
case  on  his  docket  as  dismissed  and  give  to  either  party  requesting  it  a 
copy  of  the  agreement  filed;  but  no  mandate  or  other  process  on  such  dis- 
missal shall  be  issued  without  the  order  of  the  court. 

In  the  Ninth  circuit,  §  3  is  as  follows: 

3.  Upon  the  filing  of  the  transcript  of  a  record  brought  up  by  writ  of 
error  or  appeal,  the  appearance  of  the  counsel  for  the  party  docketing  the 
case  shall,  if  said  counsel  be  qualified  under  the  provisions  of  rule  7,  be 
entered. 

RULE  17. 
DOCKET  AND  CALENDARS. 

First  circuit. — 1.  The  clerk  shall  enter  and  number  on  the  docket  all 
cases  consecutively,  in  their  proper  chronological  order. 

2.  He  shall  print  at  least  twenty  days  before  the  first  Tuesday  of  October 
and  of  January,  and  the  second  Tuesday  of  April,  a  calendar  of  all  the 
pending  cases,  arranged  by  districts  in  the  following  order:  Maine,  New 
Hampshire,  Rhode  Island,  Massachusetts. 

DOCKET. 

Second  circuit. — The  clerk  shall  enter  upon  a  docket  all  cases  brought  to 
and  pending  in  the  court  in  their  proper  chronological  order,  and  such  docket 
shall  be  called  at  every  term,  or  adjourned  term;  and  if  a  case  is  called 
for  hearing  at  two  terms  successively,  and  upon  the  call  at  the  second  term 
neither  party  is  prepared  to  argue  it,  it  will  be  dismissed  at  the  cost  of 
the  plaintiff  in  error  or  appellant,  unless  sufficient  cause  is  shown  for  further 
postponement. 

In  the  Third  circuit  this  rule  is  rule  18,  and  is  as  follows: 
DOCKET  AND  ARGUMENT  LISTS. 

1.  Upon  the  filing  of  the  record  in  any  case  by  the  plaintiff  in  error  or 
appellant  and  the  payment  by  him  of  a  deposit   fee  of  twenty-five  dollars, 
the  clerk  shall  enter  the  case,  the  record  of  which  is  so  filed,  upon  the  docket 
of  this  court;  such  docket  shall  have  all  its  cases  arranged  in  their  proper 
chronological  order. 

2.  The  clerk  shall  prepare  and  cause  to  be  printed,  previous  to  the  opening 
of   each   term   of   this   court,   an   argument   list   of  all   cases   the   records   of 
which  shall  have  been  filed  with  him  not  less  than  fifteen  days  before  the 
opening  of  the  term,  which  cases  shall  be  put  on  the  argument  list  in  the 
chronological  order  of  docketing  the  same,  subject,  however,  to  the  following 
system  of  grouping:    The  first  group  shall  be  composed  of  the  cases  in  which 


812  APPENDIX 

all  the  circuit  judges  shall  be  competent  to  sit;  the  second,  of  the  cases  in 
which  all  the  circuit  judges  except  the  youngest  in  commission  shall  be 
competent  to  sit;  the  third,  of  the  cases  in  which  all  the  circuit  judges  except 
tin*  next  to  the  youngest  in  commission  shall  be  competent  to  sit,  and  the 
fourth,  of  the  cases  in  which  all  the  circuit  judges  except  the  oldest  judge  in 
commission  shall  be  competent  to  sit. 

DOCKET. 

Fourth  circuit. — 1.  The  clerk  shall  enter  upon  a  docket  all  cases  brought 
to  and  pending  in  the  court   in  their  proper  chronological   order. 

2.  All   cases   in   which   copies   of   the   printed   record   are   delivered   to   the 
adverse  party  or  his  counsel  at  least  twenty  days  before  any  regular  term 
or  adjourned  term  shall  stand  for  argument  at  the  term  holden  next  after 
the  docketing  of  the  case. 

3.  The  clerk  before  each  regular  term  shall  print  a  docket  containing  all 
pending  cases   and   such   docket  shall  be  called   at   every  term   or   adjourned 
term.     If  a  case  is  called  for  hearing  at  two  terms  successively,  and   upon 
the  call  at  the  second  term  neither  party  is  prepared  to  argue  it,  it  will  be 
dismissed  at  the  cost  of  the  plaintliff  in   error,  appellant   or   petitioner   for 
revision,  unless  sufficient  cause  is  shown  for  further  postponement. 

4.  By  consent  of  counsel  in  writing  filed  with  the  clerk  of  this  court,  any 
cases  not  included  in  section  2  of  this  rule  may  be  by  the  clerk'  placed  at 
the  foot  of  the  argument  docket  and  may  be  argued  at  any  term  or  adjourned 
term,  provided  the  briefs  on  both  sides  are  filed  before  the  case  is  called. 

Fifth  circuit:  same  as  in  second  circuit. 

In  the  Sixth  circuit  this  rule  is  section  1  of  rule  18,  as  follows: 
1.  The   clerk    shall    enter   upon    the    docket    in   their    proper    chronological 
order  all  cases  brought  to  or  in  this  court. 

And  rule  17  is  as  follows  in  that  circuit: 

PROCEEDINGS  IN  FORMA  PAUPERIS. 

1.  Applications  for  leave  to  proceed  in  this  court  pursuant  to  the  act  of 
July   20th,   1892,   as   amended  July   25th,   1910,   must  be   by   special   motion 
with  notice  under  rule  24.    If  made  before  return  is  filed  in  this  court,  notice 
shall  be  served  upon  the  adverse  counsel  in  the  district  court.     The  showing 
by   affidavit   must  be   sufficient   to   satisfy   this   court   that   the   appellant   is 
entitled  to  the  benefit  of  the  act. 

2.  If    appellant    was    plaintiff    or    complainant    below,    he    must,    with    his 
application  to  this  court,  make  it  appear  whether  or  not  any  other  person — 
attorney,    counsel,    or    otherwise — is    beneficially    interested    in    the    recovery 
sought,  and,  if  so,  that  every  such  person  is,  because  of  his  poverty,  unable 
to   pay,  or  give   security   for,   the   costs   from   which   appellants    seek   to   be 
excused. 

DOCKET. 

Seventh  circuit. — The  clerk  shall  prepare  calendars  of  causes  for  the  regu- 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS 

lar  terms  of  this  court,  to  be  held  on  the  first  Tuesday  of  October  in  eacli 
year,  and  for  each  adjourned  session;  placing  thereon  in  proper  chronological 
order  only  cases  in  which  the  record  having  been  printed,  briefs  upon  both 
sides  have  been  filed  seven  days  before  the  beginning  of  the  term  or  ses- 
sion. 

DOCKET. 

Eighth  circuit. — The  clerk  shall  enter  upon  a  docket  all  cases  brought  to 
and  pending  in  the  court  in  their  proper  chronological  order,  and  such  docket 
shall  be  called  at  every  term,  or  adjourned  term,  except  cases  from  the  dis- 
tricts of  Colorado,  Utah,  Wyoming  and  New  Mexico,  which  cases  shall  only 
be  called  at  the  September  term  unless  counsel  otherwise  stipulate  as  pro- 
vided in  rule  3;  and  if  a  case  is  called  for  hearing  at  two  terms  successively, 
and  upon  the  call  at  the  second  term  neither  party  is  prepared  to  argue  it, 
it  will  be  dismissed  at  the  cost  of  the  plaintiff  in  error  or  appellant,  unless 
sufficient  cause  is  shown  for  further  postponement. 

DOCKET. 

Ninth  circuit. — The  clerk  shall,  upon  payment  to  him  by  the  appellant  or 
plaintiff  in  error  of  a  deposit  of  twenty-five  dollars  in  each  case,  file  the 
record  and  enter  upon  a  docket  all  cases  brought  to  and  pending  in  the  court 
in  their  proper  chronological  order. 

RULE    18. 
CERTIORARI. 

No  certiorari  for  diminution  of  the  record  will  be  hereafter  awarded  in 
any  case,  unless  a  motion  therefor  shall  be  made  in  writing,  and  the  facts 
on  which  the  same  is  founded  shall,  if  not  admitted  by  the  other  party,  be 
verified  by  affidavit.  And  all  motions  for  such  certiorari  must  be  made  at 
the  first  term  of  the  entry  of  the  case;  otherwise,  the  same  will  not  be 
granted,  unless  upon  special  cause  shown  to  the  court,  accounting  satis- 
factorily for  the  delay. 

There  is  no  rule  in  the  Sixth  circuit  relating  to  certiorari. 

RULE    19. 
DEATH  OF  A  PARTY. 

1.  Whenever,  pending  a  writ  of  error  or  appeal  in  this  court,  either  party 
shall  die,  the  proper  representatives  in  the  personalty  or  realty  of  tin- 
deceased  party,  according  to  the  nature  of  the  case,  may  voluntarily  come 
in  and  be  admitted  parties  to  the  suit,  and  thereupon  the  case  shall  be 
heard  and  determined  as  in  other  cases;  and,  if  such  representatives  shall 
not  voluntarily  become  parties,  then  the  other  party  may  suggest  the  death 


814  APPENDIX 

on  the  record,  and  thereupon,  on  motion,  obtain  an  order  that,  unless  such 
representatives  shall  become  parties  within  sixty  days,  the  party  moving  for 
such  order,  if  defendant  in  error,  shall  be  entitled  to  have  the  writ  of  error 
or  appeal  dismissed,  and,  if  the  party  so  moving  shall  be  plaintiff  in  error, 
he  shall  be  entitled  to  open  the  record,  and,  on  hearing,  have  the  judgment 
or  decree  reversed,  if  it  be  erroneous:  Provided,  however,  That  a  copy  of 
every  such  order  shall  be  personally  served  on  said  representatives  at  least 
thirty  days  before  the  expiration  of  such  sixty  days. 

2.  When  the  death  of  a  party  is  suggested,  and  the  representatives  of  the 
deceased  do  not  appear   within  ten  days  after  the  expiration  of  such   sixty 
days,  and  no  measures  are  taken  by  the  opposite  party  within  that  time  to 
compel  their  appearance,  the  case  shall  abate. 

3.  When  either  party  to  a  suit  in  a  district  court  of  the  United  States 
shall  desire  to  prosecute  a  writ  of  error  or  appeal  to  this  court   from   any 
final  judgment  or  decree  rendered  in  the  circuit  or  district  court,  and  at  the 
time  of  suing  out  such  writ  of  error  or  appeal,  the  other  party  to  the  suit 
shall  be  dead  and  have  no  proper  representative   within   the  jurisdiction   of 
the  court  which  rendered  such  final  judgment  or  decree,  so  that  the  suit  can- 
not be  revived  in  that  court,  but  shall  have  a  proper  representative  in  some 
state  or  territory  of  the  United  States,  or  in  the  District  of  Columbia,  the 
party  desiring  such  writ  of  error  or  appeal  may  procure  the  same,  and  may 
have   proceedings  on   such   judgment   or   decree  superseded   or   stayed   in   the 
same  manner  as  is  now  allowed  by  law  in  other  cases,  and  shall  thereupon 
proceed   with  such   writ   of  error  or  appeal   as   in  other   cases.     And   within 
thirty  days  after  the  filing  of  the  record  in  this  court  the  plaintiff  in  error 
or   appellant    shall   make   a   suggestion   to   the   court,   supported   by   affidavit, 
that  the  said  party  was  dead  when  the  writ  of  error  or  appeal   was  taken 
or  sued  out,  and  had  no  proper  representative  within  the  jurisdiction  of  the 
court  which  rendered  such  judgment  or  decree,   so  that  the   suit  could   not 
be  revived  in  that  court,  and  that  said  party  had  a  proper  representative  in 
some  state  or  territory  of  the  United  States,  or  in  the  District  of  Columbia, 
and  stating  therein  the  name  and  character  of  such  representative,  and  the 
state  or  territory  or  district  in  which  such  representative  resides;   and  upon 
such  suggestion  he  may  on  motion  obtain  an  order  that,  unless  such  repre- 
sentative shall  make  himself  a  party  within  ninety  days,  the  plaintiff  in  error 
or  appellant  shall  be  entitled  to  open  the  record,  and  on  hearing  have  the 
judgment  or  decree  reversed,  if  the  same  be  erroneous:      Provided,  however, 
that  a  proper  citation,  reciting  the  substance  of  such  order,  shall  be  served 
upon  such  representative  either  personally  or  by  being  left  at  his  residence, 
at   least   thirty   days   before   the  expiration   of   such   ninety  days :     Provided, 
also,   that   in   every  such   case,   if  the   representative   of   the   deceased   party 
does  not  appear  within  ten  days  after  the  expiration  of  such  ninety  days 
and  the  measures  above  provided  to   compel   the  appearance  of  such  repre- 
sentative have  not  been  taken   within   the  time   as   above   required,  by  the 
opposite   party,   the   case    shall    abate:      And   provided,    also,    that    the    said 
representative   may   at   any    time   before   or   after   said   suggestion    come    in 
and  be  made  a  party  to  the  suit  and  thereupon  the  suit  shall  proceed,  and 
be  heard  and  determined  as  in  other  cases. 

In  the  Third  circuit  the  above  is  rule  21,  and  rule  19  is  as  follows: 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  815 

ARGUMENTS,  CONTINUANCES,  AND  DISMISSALS. 

1.  The  cases   in   the  argument   list   shall  be   called   for   argument  at  each 
term,  or  adjourned  term,  and  cases  shall  be  argued  on  call  unless  the  court 
shall   for  good  cause  otherwise  order. 

2.  If   the   defendant    in   error   or   appellee   fails   to    appear   when   his    case 
is  called  for  argument,  the  court  may  proceed  to  hear  the  argument  on  the. 
part  of   the  plaintiff  in  error  or   appellant  and  to  give  judgment  according 
to  the  right  of  the  case. 

3.  For   good   cause   shown   the   court    may   order   the   continuance    of   any 
case   for  the  term. 

4.  When  a  case  is  reached  in  the  regular  call,  and  there  is  no  appearance 
for  either  party,  it  may  be  dismissed  at  the  cost  of  the   plaintiff   in  error 
or  appellant. 

5.  Where  no  counsel  appears  for  the  plaintiff  in  error  or  appellant,  and  no 
brief  has  been   filed  for  him,  the  defendant   in   error  or  appellee   may   havo 
the  writ  of  error  or  appeal  dismissed  at  the  cost  of  the  defaulting  party. 

6.  If  a  case  is  called   for  argument  at  two  terms   successively,  and  upon 
the  call   at  the  second  term  neither  party  .is   prepared   to   argue   it,   it   will 
be  dismissed  at  the  cost  of  the  plaintiff  in  error  or  appellant  unless  a  suffi- 
cient cause  is  shown   for  further  postponement. 

7.  Whenever   the   plaintiff   and   defendant   in   a   writ   of   error   pending   in 
the  court,  or  the  appellant  and  appellee  in  an  appeal,  shall,  by  their  attor- 
neys of  record,  sign  and  file  with  the  clerk  an  agreement  in  writing  directing 
the  case  to  be  dismissed,  and  specifying  the  terms  on  which  it  is  to  be  dis- 
missed, as  to  costs,  and  shall  pay  to  the  clerk  any  fees  that  may  be  due  to 
him,  it  shall  be  the  duty  of  the  clerk  to  enter  the"  case  dismissed,  and  to  give 
to  either  party  requesting  it  a  copy  of  the  agreement  filed;  but  no  mandate 
or  other  process  shall  issue  without  an  order  of  the  court. 

8.  Cases  may  also  be  dismissed  in  accordance  with  the  second  section  of 
rule   17,  the  first  section   of  rule   23,   and   the   fourth   section   of  rule   24   of 
this   court. 

9.  Except   as   in   the  preceding   sections   of   this   rule   it   is   otherwise  pro- 
vided,  no   motion    to   dismiss   a   writ   of   error   or   an   appeal   will   be   heard 
unless    previous    notice    of    the    motion    has    been    given    to   the    plaintiff   in 
error  or  appellant  or  his  counsel. 

In  the  Sixth  circuit  this  is  rule  16,  and  rule  19  is  as  follows: 
PRINTING  RECORDS. 

1.  In  cases  where  the  record  is  printed  by  the  appellant  under  act  of  Febru- 
ary 13,  1911,  he  shall  file  with  the  clerk  twenty-five  printed  copies  thereof 
within  the  time  as  limited  or  extended  for  making  return  to  writ  of  error 
or  appeal.  The  clerk  shall  examine  the  printed  records  so  offered  to  ascer- 
tain whether  the  transcript  complies  with  rule  15,  and  also,  whether  the  print- 
ed records  comply  with  the  statute  and  are  properly  indexed.  If,  in  his  judg- 
ment, they  are  insufficient  in  any  particular,  he  shall  bring  the  matter  to  the 
attention  of  the  court,  which  will  thereupon  make  such  order  as  to  it  may 


816  APPENDIX 

seem  proper  for  corrected  or  supplementary  return  and  printed  records.  As 
soon  as  the  printed  records  are  approved  as  filed  or  perfected  as  ordered,  the 
clerk  shall  deliver  one  copy  to  each  counsel  or  group  of  counsel  representing 
a  separate  interest,  and  shall  continue  such  distribution  as  counsel  subse- 
quently appear. 

2.  The  clerk  shall,  from  time  to  time  and  as  directed  by  the  senior  circuit 
judge,  receive  proposals  for  printing  such  records  as  are  to  be  printed  by  the 
clerk,  which  proposals  shall  be  submitted  to  such  judge,  who  will,  in  his  dis- 
cretion, award  such  printing  to  the  most  satisfactory  bidder;   and  the  same 
shall  be  done,  during  the  period  of  such  award,  by  the  person  to  whom  it  is 
made. 

3.  In  cases  where  appellant  is  not  proceeding  under  such  statute,  the  clerk 
shall  at  once,  upon  the  docketing  of  the  case,  cause  an  estimate  to  be  made 
of  the  cost  of  printing  the  record,  including  his  supervising  fee  as  provided  in 
the  table  of  costs  following  rule  27,  and  notify  counsel  for  appellant  of  the 
estimated  amount,  which   shall   be  paid  to   the   clerk   within   ten   days   after 
such  notice.     If  not  so  paid,  the  case  may  be  dismissed  upon  motion  or  by 
the  court  upon  its  own  motion.     Supplemental  estimates  and  payments  there- 
of shall  be  made,  if  necessary;   any  excess  payment  shall  be  refunded,  when 
the  printing  is  finished.     When  the  record  was  printed  upon  a  former  review 
of  the  same  case,  and  enough  old  records  to  be  reasonably  sufficient  for  use 
upon  the  hearing  are  on  file  or  available,  the  use  of  such  old  records,  in  lieu 
of  printing,  will  be  permitted,  upon  the  order  of  the  presiding  judge,  and  to 
the  extent  specified  in  such  order. 

4.  At  once,  upon  the  payment  of  such  estimate,  the  clerk  shall  cause  twenty- 
iive  copies  of  the  record  to  be  printed  forthwith,  shall  file  the  same  and  shall 
distribute  three  copies  of  the  same  to  counsel  for  each  separate  adverse  interest 
then  or  thereafter  appearing.    Before  printing,  he  shall  examine  the  transcript 
to  ascertain  whether  it  complies  with  rule  15,  and  if,  in  his  judgment,  it  omits 
anything   required   by  that   rule,   he   shall   submit   the   matter   to   the   court, 
which  will  make  such  order  as  to  it  may  seem  proper  regarding  a  corrected  or 
supplementary  return;  and  the  printing  shall  be  delayed  until  the  filing  of  any 
further  return  so  ordered.     In  printing,  the  clerk  shall  omit  any  matters  con- 
tained in  the  transcript  which,  by  rule  15,  are  required   to  be  omitted.     If 
the  appellant  shall  in  writing  and  before  the  record  is  printed,  request  the 
clerk  so  to  do,  he  shall  print  fifty  copi'es  instead  of  twenty-five.     If  the  appel- 
lee shall  request  such  additional  copies  to  be  printed,  the  clerk  shall  comply 
with  such  request,  if  the  appellee,  upon  demand,  advances  to  him  the  esti- 
mated cost  of  printing  the  additional  twenty-five  copies.     If,  later,  a  review 
in  the  Supreme  Court  is  sought*,  the  clerk  shall  deliver  such  twenty-five  copies 
to  the  party   seeking  a  review;    but   if  such   additional   records  are   wanted 
by  the  party  who  did  not  pay  for  the  printing  thereof,  the  clerk  shall  require 
payment  to  him  of  the  actual  cost  of  such  additional  printing  and  shall  re- 
fund the  same  to  the  party  who  had  paid  therefor. 

5.  Where   the   record  is   printed   by   the   appellant,  he   shall   file   therewith 
proof  by  affidavit  of  the  actual  cost  of  such  printing,  including  the  amount 
paid  to  the  clerk  in  the  district  court  for  the  transcript.     The  amounts  paid 
to  the  clerk  of  the  district  court   for  the  manuscript   transcript  and   to  the 
clerk  of  this  court  for  printing  and  for  his  fees  in  connection  therewith,  or 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  817 

the  amounts  so  shown  to  have  been  paid  below  by  appellant  (not  exceeding, 
for  printing,  the  amount  which  printing  and  supervision  by  the  clerk  of  this 
court  would  have  cost)  shall  form  a  part  of  the  costs  of  the  cause  in  this 
court  and  shall  be  taxed  against  the  party  against  whom  the  costs  are  given 
and  shall  be  inserted  in  the  mandate  or  other  proper  process. 

RULE    20. 
DISMISSING   CASES. 

Whenever  the  plaintiff  and  defendant  in  a  writ  of  error  pending  in  this 
court,  or  the  appellant  and  appellee  in  an  appeal,  shall,  by  their  attorneys  of 
record,  sign  and  file  with  the  clerk  an  agreement  in  writing  directing  the 
case  to  be  dismissed,  and  specifying  the  terms  on  which  it  is  to  be  dismissed, 
as  to  costs,  and  shall  pay  to  the  clerk  any  fees  that  may  be  due  to  him,  it 
shall  be  the  duty  of  the  clerk  to  enter  the  case  dismissed,  and  to  give  to 
either  party  requesting  it  a  copy  of  the  agreement  filed;  but  no  mandate  or 
other  process  shall  issue  without  an  order  of  the  court. 

In  the  Fourth  circuit  the  following  is  added  to  the  above:  "No  attorney's 
docket  fee  shall  be  taxed  in  a  case  dismissed  under  this  rule." 

In  the  Eighth  circuit  this  rule  is  as  follows: 

Whenever  the  plaintiff  and  defendant  in  a  writ  of  error  pending  in  this 
court  or  the  appellant  and  appellee  in  an  appeal,  shall,  by  their  attorneys  of 
record,  sign  and  file  with  the  clerk  an  agreement  in  writing  directing  the  case 
to  be  dismissed,  and  specifying  the  terms  on  which  it  is  to  be  dismissed,  as 
to  costs,  and  shall  pay  to  the  clerk  any  fees  that  may  be  due  to  him,  it  shall 
be  the  duty  of  the  clerk  seasonably  to  present  such  agreement  to  the  court 
for  its  consideration  and  determination. 

In  the  Sixth  circuit,  rule  20  is  as  follows: 

BRIEFS. 

1.  Counsel   for  appellant,  within  twenty-five  days   after  the  filing  of   the 
printed  copies  of  the  record,  shall  file  with  the  clerk  twenty  printed  copies 
of  a  brief. 

2.  This  brief  shall  contain,  in  order  here  stated: 

(1)  A  concise  abstract  or  statement  of  the  case,  presenting  succinctly  the 
questions  involved,  and  the  manner  in  which  they  are  raised; 

(2)  A  brief  of  the  argument,  exhibiting  a  clear   statement   of  the   points 
of  law  or  fact  to  be  discussed,  with  a  reference  to  the  pages  of  the  record, 
and  the  authorities  relied  upon  in  support  of  each  point.     When  a  statute  of 
a  state  is  cited,  so  much  thereof  as  may  be  deemed  necessary  to  the  decision 
of  the  case  shall  be  printed  at  length. 

3.  Within  thirty  days   after   service   of   appellant's   brief,   counsel    for   ap- 
pellee shall  file  with  the  clerk  twenty  printed  copies  of  his  brief,  which  shall 
be  of  like  character  to  that  required  of  appellant,  except  that  no  statement 
of  the  case  shall  be  required. 

Montg.-— 52. 


818  APPENDIX  . 

4.  Subsequent  briefs  may  be  filed  by  either  party;   by  the  appellant,  not 
less  than  twenty  days,  and  by  the  appellee,  not  less  than  ten  days,  before 
the  case  is  put  on  the  call  for  argument.     Later  briefs  will  not  be  received 
by  the  clerk  or  by  the  court,  without  permission  of  the  court  or  one  of  the 
judges  thereof. 

5.  Every  brief  of  more  than  twenty   pages  shall  contain   on   its  front  fly 
leaves,  a  subject  index  with  page  references,  the  subject  index  to  be  supple- 
mented by   a   list  of   all  cases   referred   to  alphabetically   arranged   together 
with  references  to  the  pages  of  the  brief  where  the  cases  are  cited. 

6.  At  or  before  the  time  of  filing  any  brief,  two  copies  thereof  shall   be 
served   upon   each   adverse   counsel   who   has   appeared   in   this   court,   and   if 
there  has  been  no  appearance  here  for  appellee,  then  upon  his  counsel  in  the 
court  below;    and  the  clerk  shall  require  proof  or  acknowledgment  of   such 
services  to  be  filed  with  the  brief. 

7.  When  an  appellant  is  in  default  under  clause  1  of  this  rule,  the  case  may 
be  dismissed  on  motion,  or  further  time  may  be  granted;   when  an  appellee 
is  in  default  under  clause  3  of  this  rule,  the  appellant  may  bring  such  de- 
fault to  the  attention  of  the  court  by  a  motion  for  a  summary  judgment 
of  reversement,  and  thereupon  the  court  will  entertain  such  motion,  or  grant 
further  time,  as  may  seem  proper;  at  the  hearing  a  party  who  has  not  filed  a 
brief,  as  required  by  this  rule,  will  not  be  heard  orally,  unless  the  court  shall 
so  request. 

RULE    21. 

MOTIONS. 

1.  All  motions  to  the  court  shall  be  reduced  to  writing,  and  shall  contain 
a  brief  statement  of  the  facts  and  objects  of  the  motion. 

2.  One  hour  on  each   side  shall  be  allowed  to  the  argument  of  a  motion, 
and  no  more,  without  special  leave  of  the  court,  granted  before  the  argument 
begins. 

3.  No  motion  to  dismiss,  except  on  special  assignment  by  the  court,  shall 
be  heard,  unless  previous  notice  has  been  given  to  the  adverse  party,  or  the 
counsel  or  attorney  of  such  party. 

In  the  First  circuit  the  following  sections  are  added  to  the  above,  and  the 
time  for  argument  is  changed  to  one  half  hour: 

1.  The  motion  day  shall  be  the  first  Tuesday  of  every  stated  session  of 
the  court,  and  any  other  Tuesday  while  the  court  shall  remain  in  session. 

3.  All  motions  to  dismiss  writs  of  error  or  appeals  (except  motions  to 
docket  and  dismiss  under  rule  16)  or  to  advance  cases,  or  for  a  writ  of 
certiorari,  and  other  special  motions,  shall  be  printed,  and  be  accompanied 
by  printed  briefs. 

5.  Any  motion,  of  which  counsel  shall  have  given  notice  to  the  clerk  in 
advance,  shall  be  entered  on  the  clerk's  list  in  the  order  in  which  he  receives 
notice  thereof,  and  shall  have  priority  in  that  order  before  other  motions, 
unless  otherwise  specially  ordered  by  the  court. 

In  the  Sixth  circuit,  rule  21  is  as  follows: 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  819 

FORM  OF  PLEADINGS,  RECORDS  AND  BRIEFS. 

1.  Records  printed  by  the  clerk  shall  be  of  a  uniform  size,  printed  in  small 
pica  type,  24  pica  ems  to  a  line,  48  lines  to  a  page,  solid,  with  index  and 
suitable  cover,  containing  the  title  of  the  court  and  cause,  the  court  from 
which   the  case   is   brought  to  this   court   and  the   number   of  the   case;    size 
of   pages  to  be.  9£  x  6A   inches,  except  that   in   patent  cases  the   size  of  the 
page  will  be  10J  x  7|  inches, — that  is  to  say,  large  enough  to  bind  in  copies 
of  patent  office  drawings  and  specifications  without  folding. 

The  type  shall  be  of  a  clear,  strong  face,  substantially  equivalent  to  that 
in  which  this  rule  (in  the  official  copy)  is  printed  and  the  paper  shall  be  wholly 
unglazed.  Each  page  shall  carry  as  a  running  head  in  addition  to  the  48  lines, 
the  name  of  the  paper  or  of  the  witness  testifying,  as  found  on  that  page. 
Each  pleading,  order,  exhibit  or  other  paper  shall  be  separated  from  the  pre- 
ceding matter  by  a  2-inch  space  and  shall  be  headed  by  its  title,  in  black-faced 
capitals,  and  its  filing  date  (e.  g.,  "Answer — Filed  February  15th,  1913"). 
The  full  title  of  the  court  and  cause  below  shall  be  given  on  the  title  page; 
elsewhere,  both  shall  be  omitted. 

2.  Printed    arguments    and    briefs    of    attorneys    shall    conform    as    far   as 
practicable  to  the  size  and  style  of  the  printed  record  but  shall  contain  about 
36  lines  to  the  page  and  be  leaded  with  at  least  two-point  leads. 

In  the  Seventh  circuit  the  time  of  argument  is  changed  to  one  half  hour. 

In  the  Ninth  circuit  §  1  is  as  follows,  and  the  time  of  argument  is  changed 
to  one  half  hour: 

1.  All  motions  to  the  court  shall  be  reduced  to  writing,  shall  contain  a 
brief  statement  of  the  facts  and  objects  of  the  motion  and  shall  be  served 
upon  opposing  counsel  at  least  five  days  before  the  day  noticed  for  the  hearing. 

RULE  22. 
PARTIES  NOT  READY. 

1.  When  a  case   is   called  for   hearing,   and   no   counsel   appears    and   no 
brief  has  been  filed  for  the  plaintiff  in  error  or  appellant,  the  defendant  in 
error  or  appellee  may  have  the  adverse  party  called  and  the  writ  of  error 
or  appeal  dismissed. 

2.  Where  the  defendant  in  error  or  appellee  fails  to  appear  when  the  case 
is  called  for  hearing,  the  court  may  proceed  to  hear  argument  on  the  part 
of  the  plaintiff  in  error  or  appellant,  and  to  give  judgment  according  to  the 
right  of  the  case. 

3.  When  a  case  is  reached  in  the  regular  call  of  the  docket,  and  no  counsel 
appears  for  either  party,  and  no  submission  of  the  case  is  asked,  the  case 
may  be  dismissed  at  the  cost  of  the  plaintiff  in  error  or  appellant. 

In  the  First  circuit  the  following  sections  are  added  to  the  above: 
1.  On   the   first   Tuesday   of   October   and   of   January,   and   on   the   second 
Tuesday  of  April,   the  court,  except  as  may,   from  time  to   time,  be  other- 
wise   ordered,   will    commence   calling   cases    for   argument    in   the    order    in 


820 

which  they  stand  on  the  calendar,  and  proceed  from  day  to  day  during  the 
session  in  the  same  order;  but  no  case  from  the  district  of  Massachusetts  shall 
be  called  before  the  second  Tuesday  of  the  session. 

5.  If  either  of  the  parties  is  ready  when  the  case  is  called,  the  same  may 
be  heard;   and,  if  neither  party  is  ready,  the  case  may  be  dismissed,  or  be 
postponed  to  the  next  session,  as  the  court  may  order. 

6.  If  a  case  is  called  for  hearing  at  two  stated  sessions  successively,  and, 
on  the  call  at  the  second  session,  neither  party  is  prepared  to  argue  it,   it 
will   be  dismissed  at  the  cost  of  the  plaintiff  in  error  or  appellant,  unless 
sufficient  cause  is  shown  for  further  postponement. 

In  the  Sixth  circuit  this  rule  is  as  follows: 

THE   HEARING    CALENDAR. 

1.  Upon  the  expiration  of  the  time  limited  for  filing  briefs,  the  case  shall 
stand  for  hearing  when  reached. 

2.  A  calendar,  containing  all  cases  docketed  and  not  heard,  shall  be  printed 
by  the  clerk  for  the  October,  January  and  April  sessions.     The  cases  on  the 
calendar  which  stand  for  hearing  under  clause  1  will  be  called  for  argument 
in   their   order    (as   far   as   practicable)    on   the   calendar,   except   as   special 
advancements  may   have  been   made. 

3.  By   leave   of   court   and   on   motion   of   either   party    (1)    cases   entitled 
by  statute  to  precedence,    (2)    criminal  cases,    (3)    appeals,  writs  of  error  or 
petitions  to  revise  in  bankruptcy  matters,  and    (4)    cases  which  are  for  the 
second  time  in  this  court, — may  be  advanced  and  set  for  a  designated  session. 
The  court  may  also,  on  its  own  motion  or  for  good  cause  shown  on  motion 
of  either  party,  advance  any  case  to  be  heard  at  any  session,  though  the  time 
permitted  under  the  rules  for  filing  briefs  may  not  have  expired  at  the  day 
set   for   hearing. 

4.  Not  more  than  three  cases  will  be  heard  on  one  day    (counting,  how- 
ever, as  one  case,  two  or  more  which  are  heard  together).     The  call  for  the 
next  day  shall,  at  the  adjournment  of  court,  be  exhibited  in  the  clerk's  office. 
Counsel   choosing  to  rely   on  the  judgment  of  the  clerk  as   to  the   probable 
time  of  hearing  any  case  must  do  so  at  their  own  risk. 

5.  When  the  case  is  called,  if  either  party  is  ready,  the  case  will  be  heard. 
If  there  is  no  appearance  for  either  party,  the  case  will   be  dismissed.     If 
the  appellant  does  not  appear  by  counsel  or  by  printed  brief  but  the  appellee 
does  appear,  the  case  will   be  dismissed.     If  the  appellant  appears  and  the 
appellee  does  not,  the  court  will  hear  the  appellant. 

0.  By  agreement  of  counsel  in  open  court  or  by  stipulation  filed  in  the 
clerk's  office,  hearing  may  be  continued  once  to  any  later  session  during  the 
term  or  from  the  last  session  of  one  term  to  the  first  session  of  the  next 
term,  but  not  to  a  later  day  during  the  same  session.  Subsequent  con- 
tinuances can  be  made  only  by  the  court  and  will  be  only  for  reasons  satis- 
factory to  the  court;  and  engagement  of  counsel  in  other  courts  will  not  be 
considered  good  cause. 

7.  Two  or  more  cases,   involving  the  same  question,  may,  by  order  of  the 
court,  be  heard  together,  but  they  must  be  argued  as  one  cause. 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  821 

RULE    23. 
PRINTING   RECORDS. 

1.  In   all   cases,   the   plaintiff   in   error  or   appellant,   on   docketing   a  case 
and    filing   the   record,   shall   enter   into   an   undertaking   to   the   clerk,   with 
surety  to  his  satisfaction,  for  the  payment  of  his  fees,  or  otherwise  satisfy 
him  in  that  behalf. 

2.  The  clerk  shall  cause  an  estimate  to  be  made  of  the  cost  of  printing 
the  record,  and  of  his  fee  for  preparing  it  for  the  printer,  and  shall  notify 
to  the   party   docketing  the   case  the  amount  of   the   estimate.     If   he   shall 
not   pay    it   within    a    reasonable   time,    the   clerk    shall   notify    the   adverse 
party,  and  he  may  pay  it.     If  neither  party  shall  pay  it,  and  for  want  of 
such    payment    the    record    shall    not    have    been    printed,    when    the    case 
is  reached  at  the  regular  call  of  the  docket,  the  case  may  be  dismissed. 

3.  Upon   payment  by  either  party  of  the  amount  estimated  by  the  clerk, 
twenty-five   copies   of   the   record   shall   be   printed   under   the   clerk's   super- 
vision, for  the  use  of  the  court  and  of  counsel. 

4.  The    clerk    shall    take    to    the    printer   the    original    transcript,    on    file: 
but  shall  cause  copies  to  be  made  for  the  printer   of  such   original   papers 
sent   up   under   rule    14,   or    other   original   papers,   as    are   necessary    to   be 
printed!'. 

5.  The  clerk  shall  supervise  the  printing,  and  see  that  the  printed  copies 
arc   properly   indexed;    and  he  shall  distribute   printed  copies  to  the  judges 
and  the   reporter,  from  time  to  time,  as   required,   and  three   copies  to  the 
counsel  for  each  party.     An  additional  number  of  copies  may  be  printed  at 
the  request  of  either  party  for  his  own  use  and  at  his  own  expense,  or  by 
order  of  the   court. 

6.  The   parties   may    stipulate   in   writing   that    parts    only   of   the   record 
shall  be   printed,  and  the  case  may  be  heard  on  the  parts  so  printed;   but 
the  court  may  direct  the  printing  of  other  parts  of  the  record. 

7.  The    clerk    may    receive    from    either    party,    and    use   as    parts    of   the 
printed   record,   so  far   as   the   same   may   be   of   proper   and   convenient   size 
and   type,   any   portions   which   have   been    printed    in   any   other   court,   and 
also   printed   copies   of   patents   and  other   exhibits,   allowing  the  party   fur- 
nisliing   the   same   such   sum   therefor   as  the   clerk   deems   reasonable,   to   be 
added  to  and  form  a  part  of  the  cost  of  printing. 

8.  If  the  actual  cost  of  printing  the  record,  together  with  the  fee  of  the 
clerk.,  shall    be    less    than    the    amount   estimated    and    paid,    the    amount    of 
the    (litTcrtMice   shall   be    refunded    by   the   clerk    to   the    party    paying    it.      If 
the   actual   cost   and   clerk's  fee  shall   exceed   the   estimate,   the   excess   shall 
be  paid  to  the  clerk  before  the  delivery  of  a  printed  copy  to  either  party  or 
his  counsel. 

9.  In   case   of   reversal,   affirmance,   or   dismissal,   with   costs,  the   costs   of 
printing   the   record   and   the   clerk's   fee   shall    be   taxed    against   the   party 
against   whom    costs   are   given,   and    shall   be    inserted    in    the   body   of   the 
mandate  or  other  proper  process. 

Second   circuit. — -On   the   filing  of   the   transcript    in   every   case,   the   clerk 
shall   forthwith    cause   fifteen   copies   of   the   same   to   be   printed,   and   shall 


822  APPENDIX 

furnish  three  copies  thereof  to  each  party,  at  least  thirty  clays  before  the 
argument,  and  shall  file  nine  copies  thereof  in  his  office.  The  parties  may 
stipulate  in  writing  that  parts  only  of  the  record  shall  be  printed,  and 
the  case  may  be  heard  on  the  parts  so  printed;  but  the  court  may  direct 
the  printing  of  other  parts  of  the  record.  The  clerk  shall  be  entitled  to 
demand  of  the  appellant,  or  plaintiff  in  error,  the  cost  of  printing  the  record, 
before  ordering  the  same  to  be  done.  If  the  record  shall  not  have  been 
printed  when  the  case  is  reached  for  argument,  for  failure  of  a  party  to 
advance  the  costs  of  printing,  the  case  may  be  dismissed.  In  case  of  reversal, 
affirmance,  or  dismissal,  with  costs,  the  amount  paid  for  printing  the  record 
shall  be  taxed  against  the  party  against  whom  costs  are  given. 

PRINTING    AND    DISTRIBUTING    RECORDS. 

Third  circuit. — 1.  It  shall  be  the  duty  of  the  clerk,  immediately  after 
the  record  of  any  case  shall  have  been  filed  with  him  and  docketed  and 
the  deposit  fee  of  twenty-five  dollars  shall  have  been  paid,  to  notify  counsel 
for  all  parties  that  he  will  print  only  the  parts  of  the  record  mentioned 
in  the  second  section  of  this  rule,  specifying  what  those  parts  shall  be, 
and  to  notify  the  counsel  for  plaintiff  in  error  or  appellant  of  his  estimate 
of  the  cost  of  printing  such  parts  of  the  record  and  of  his  fee  for"  pre- 
paring the  parts  for  the  printer,  indexing  the  same  and  supervising  the 
printing  thereof.  He  shall  print  no  other  parts  of  the  record  unless,  within 
ten  days  after  such  notice,  he  receives  from  some  one  or  more  of  the  counsel 
a  written  certificate  that  in  his  or  their  judgment  other  specified  parts 
thereof  should  be  printed  in  order  to  enable  this  court  properly  to  decide 
the  questions  raised,  in  which  event  the  parts  so  certified  as  necessary  shall 
also  be  printed.  The  court  may,  in  its  discretion,  direct  the  printing  of 
other  parts  of  the  record,  and,  in  lieu  of  printing  patents  or  other  exhibits, 
separate  printed  copies  thereof,  not  less  than  ten  in  number,  may  be  filed 
with  the  clerk.  If  other  parts  of  the  record  than  those  specified  in  his 
notice  shall  be  required  to  be  printed  by  any  of  the  counsel,  or  by  this 
court,  the  clerk  shall  immediately  notify  the  counsel  for  the  plaintiff  in  error 
or  appellant  of  his  estimate  of  the  additional  cost  of  preparing,  printing  and 
indexing  such  other  parts.  The  plaintiff  in  error  or  appellant  shall  pay 
to  the  clerk,  within  ten  days  after  notice  of  any  estimate,  the  amount 
thereof,  in  default  of  which  the  writ  of  error  or  appeal  may  be  dismissed 
upon  the  motion  of  the  opposite  party,  or  by  the  court  of  its  own  motion. 

2.  Unless  additional  parts  of  the  record  shall  be  required  to  be  printed 
under  the  provisions  of  the  first  section  of  this  rule,  the  clerk  shall  'print, 
for  the  use  of  the  court,  only  the  following  parts  thereof: 

In  writs  of  error — 

(a)1  The  docket  entries. 

(6)    The  pleadings  upon  which  the  case  was  tried. 

(c)  The  bill  of  exceptions. 

(d)  The  motion  and  reasons  for  judgment  non  obstante  veredicto,  if  any. 

(e)  The  opinion  of  the  court  below,  if  any. 
(/)   The  charge  to  the  jury,  if  any. 

(g)   The  verdict  of  the  jury,  if  any. 


RULES    OF    THE    CIRCUIT    COURTS    OF   APPEALS  823 

(A)    The  judgment  entered. 
^      (i)    The   assignments   of   error. 
In  appeal — 

(a)    The  docketing  entries. 
(6)    The  pleadings  on  which  the  case  was  held   and  determined. 

(c)  The  evidence,  if  any,  on  which  it  was  heard  and  determined. 

(d)  A  report  of  the  examiner,  master,  auditor,  referee,  or  other  officer  who 
first  decided  the  case,  if  any. 

(e)  The  exceptions  to  that  report,  if  any. 
(/)    The  opinion  of  the  court,  if  any. 

(g)   The  judgment  or  decree  entered. 

(h)    The  assignments  of  error. 

In  bankruptcy  and  other  cases  not  being  strictly  within  either  of  the 
above  classes,  the  printed  record  shall  conform  as  nearly  as  may  be  practic- 
able to  the  record  in  appeals. 

3.  The  clerk  shall  cause  twenty-five  copies  of  the  record  to  be  printed,  and 
three  copies  thereof  to  be  furnished  to  the  counsel  of  the  plaintiff  in  error 
or  appellant,   and  also  three  copies  to  each  of  the  counsel,  who  shall  have 
entered  appearance  for  any  of  the  other  parties,   and  the   remaining  copies 
to  be  filed  in  his  office,  all  if  possible,  within  thirty  days  after  the  payment 
to   him   of   the   amount   of   his   estimate   made   under   the   provisions   of   the 
first  section  of  this  rule. 

4.  The  clerk  shall   supervise  the  printing  of  the  record,  have   it   properly 
indexed   and    distribute   printed    copies    thereof    to    the   judges   of   the   court 
from  time  to  time  as  required. 

5.  If  the  actual  cost  of  printing  the  record  and  the  clerk's  fee  of  twenty- 
five  cents   per   page  for   preparing   the   record  for  the   printer,   indexing  the 
same,    supervising   the    printing   and    distributing    the    copies,    shall   be    less 
than  the  amount  estimated  and  paid,  the   clerk   shall  refund   the  difference 
to  the  party  paying  the  same,  but  if  that  shall  exceed  the  clerk's  estimate, 
the   amount  of  such  excess   shall  be   paid   to   the  clerk   before   he   shall   file 
the  printed  copies  of  the  record  or  deliver  any  of  them  to  the  parties. 

6.  In  case  of  reversal,  affirmance,  or  dismissal,  with  costs,  the  actual  cost 
paid  for  printing  the  record  by  the  party  in  whose  favor  costs  are  awarded, 
and  the  clerk's  fee  for  supervising  the  printing,  etc.,  where  such  fee  is  paid 
by   the   parties    in   whose   favor   costs   are   awarded,    shall   be   taxed    against 
the  party  against  whom  costs  are  given  and  shall  be   inserted  in  the  body 
of  the  mandate  or  other  proper  process. 

7.  Each  printed  copy  shall  show  by  a  note  or  memorandum,  the  time  when 
such   pleading  or   document  was   filed,   and   shall   contain   at   the  top   of   its 
pages  the  running  titles  of  its  contents. 

8.  In   any   case   where   the   record,   or   any   part  thereof,   has   been   printed 
in  the  court  below,  the  same  may  be  embodied  in  and  used  as  the  printed 
record  of  this  court;   provided,  the  manner  and  style  of  printing  shall  cor- 
respond  to  the   requirements   of  the  several  sections  of  this   rule  for  print- 
ing them  under  the  supervision  of  tlie  clerk  of  this  court;   but  the  plaintiff 
in   error   or   appellant   shall   pay    to   the    clerk    of   this   court    not   only    the 
deposit  fee  of  twenty-five  dollars  on  filing  the  record  and  having  it  docketed, 
but   also   the   fee   prescribed   by    rule   29    for    preparing   the    record    for   the 


824:  APPENDIX 

printer,    indexing   the   same,   supervising   the    printing   and   distributing   the 
copies  thereof. 

9.  The  clerk  shall  on  or  before  the  conclusion  of  each  case,  collect  and  file 
for  preservation  in  this  court  three  copies  of  the  printed  record  and  of  each 
brief,  printed  motion  and  argument  submitted  in  such  case,  which  is  im- 
mediately after  the  mandate  in  any  case  shall  have  been  set  down  to  the  lower 
court,  notifying  the  defeated  party  in  this  court  that  unless  he  removes  the 
remaining  copies  of  the  record  and  brief  within  ten  days  after  notice  so  to 
do,  the  same  will  be  destroyed. 

PRINTING  RECORDS  BY  CONSENT. 

Fourth  circuit. — This  rule  shall  apply  only  to  cases  in  which  counsel  for 
all  parties  to  any  cause  pending  in  this  court,  or  about  to  be  brought  into 
this  court,  shall  by  stipulation,  in  writing,  filed  with  the  clerk  of  the  court 
below,  agree  to  be  governed  by  the  terms  hereof. 

1.  The  transcript  may  be  made  and  the  record  printed  as  has  been  hereto- 
fore the  practice  of  this  court,  and  the  same  shall,  subject  to  the  provisions 
§§  3,  6,  and  7  of  rule  14,  be  made  up  by  the  clerk  of  the  court  below  and 
transmitted  to  this  court  under  his  hand  and  seal  as  heretofore. 

2.  All  records  in  such  cases  shall  be  printed  under  the  supervision  of  the 
clerk  of  this  court  by  such  printer  and  at  such  rate  as  this  court  may  desig- 
nate.    In   such  cases,  upon  the  payment  of  the  estimated  cost  of  printing, 
together   with    the   supervising   and    other    fees   established    by    law,    (which 
amount    shall    be    deposited    with    the    clerk    within    ten    days    after    notice 
thereof),  the  clerk  shall  cause  to  be  printed  thirty-five  copies  of  the  record, 
twenty-five   copies   of   which   shall   be   filed   for  the   use   of   the   court,   three 
copies   furnished   to   the   adverse  party,  and  the   remaining   copies  to  be   de- 
livered to  the  appellant,  plaintiff  in  error  or  petitioner. 

3.  The  parties  may  stipulate  in  writing  that  parts  only  of  the  transcript 
of  the  record  shall  be  printed,  and  the  case  may  be  heard  on  the  parts  so 
printed,  but  the  court  may  direct  the  printing  of  other  parts  of  the  record. 

4.  If  the  record  shall  not  have  been  printed  when  the  case  is  reached  on 
the  regular  call  of  the  docket,  the  case  may  be  dismissed. 

5.  In   case   of   reversal,    affirmance,   or    dismissal,    with    costs,    the   amount 
paid  for  the  printing  of  the  record  and  the  clerk's  fees  for  supervising  the 
same  shall  be  taxed  against  the  party  against  whom  costs  are  given. 

6.  In    cases    brought    here    under    this    rule    it    shall    be    the   duty    of    the 
plaintiff  in  error  or  appellant  to  docket  the  case  and  file  the  record  thereof 
with  the  clerk  of  this  court  by  or  before  the  return  day,  whether  in  vacation 
or  in  term  time  but  for  good  cause  shown  the  justice  or  judge  who  signed 
the  citation,  or  any  judge  of  this  court,  may  enlarge  the  time  by  or  before 
its  expiration,  the  order   of  enlargement  to  be   filed  with  the  clerk  of  this 
court.     If  the  plaintiff  in  error  or  appellant  shall  fail  to  comply  with  this 
rule,    the   defendant    in    error    or    appellee    may    have    the    cause    designated 
and   dismissed   upon   producing   the   certificate   from  the   clerk   of   the   court 
wherein  the  judgment  or  decree  was  rendered,  stating  the  case  and  certify- 
ing that  such  writ  of  error  or  appeal  has  been   duly  sued  out   or  allowed. 
And    in    no   case    shall    the    plaintiff    in    error    or    appellant    be    entitled    to 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  825 

docket  the  case  and  file  the  record  as  the  same  shall  have  been  docketed 
and  dismissed  under  this  rule  unless  by  order  of  the  court. 
"  7.  But  the  defendant  in  error  or  appellee  may,  at  his  option,  docket  the 
case  and  file  a  copy  of  the  record  with  the  clerk  of  this  court;  and  if  the 
case  is  docketed  and  a  copy  of  the  record  filed  with  the  clerk  of  this  court 
by  the  plaintiff  in  error  or  appellant  within  the  period  of  time  above 
limited  and  prescribed  by  this  rule,  or  by  the  defendant  in  error  or  appellee 
at  any  time  thereafter,  the  case  shall  stand  for  argument  at  the  term. 

8.  Upon  the  filing  of  the  transcript  of  a  record  brought  up  by  a  writ 
of  error  or  appeal,  the  appearance  of  the  counsel  for  the  party  designating 
the  case  shall  be  entered  as  of  course. 

Fifth  circuit. — 1.  The  clerk  shall,  upon  the  docketing  of  a  case,  forthwith 
cause  an  estimate  to  be  made  of  the  cost  of  printing  the  record  and  of 
his  fee  for  preparing  it  for  the  printer  and  supervising  the  printing;  and 
shall  notify  the  party  docketing  the  case  of  the  amount  of  the  estimate. 
If  he  shall  not  pay  it  within  fifteen  days  in  ordinary  cases,  and  within 
three  days  in  preference  cases,  after  the  date  of  such  notice,  the  clerk  shall 
notify  the  adverse  party,  and  he  may  pay  it.  If  neither  party  shall  pay 
it.  and  for  want  of  such  payment  the  records  shall  not  have  been  printed 
when  a  case  is  reached  for  hearing,  the  case  may  be  dismissed  at  the  dis- 
cretion of  the  court. 

2.  The  clerk  shall  cause  the  record  in  all  cases  to  be  printed  forthwith  after 
the    payment    of    such    estimate,    and    shall    immediately    thereafter    furnish 
to  the  counsel  of  each  party  whose  appearance  shall  have  been  entered,  three 
copies  of  the  printed  record,  taking  a  receipt  therefor,  and  the  parties  may, 
by   written   stipulation   filed   prior  to  the   printing  of  the  record,  agree  that 
only  parts  of  the  record  shall  be  printed,  and  the  same  may  be  heard  only 
on  the  parts  so  printed,  but  the  court  may  direct  the  printing  of  other  parts 
of  the  record. 

3.  The  clerk  shall  take  to  the  printer  the  original  transcript  on  file,  but 
shall  cause  copies  to  be  made   for  the   printer  of   such   original   papers   sent 
up  under  rule  14,  or  other  original  papers,  as  are  necessary  to  be  printed. 

4.  The   clerk    shall   cause    at    least   twenty-five   copies   of   the   record   to   be 
printed,    and    may    print    a    larger    number    on    the    request    of    either    party 
on   payment  of  the  amount  necessary  for  the  printing  of  such   extra  copies. 

5.  The  clerk  shall  supervise  the  printing  and  see  that  the  printed  record 
is   properly   indexed.     There  shall   be   omitted   from   the   printed  transcripts 
the  following: 

(1)  Commissions    to    take    testimony,    and    the    formal    captions    to    all 
depositions,   and   the   certificates   of   commissioners   as   to  the   taking  of   the 
depositions,  except  in  cases  where  objections  have  been  made  to  the  deposi- 
tions on  account  of  defects  in  caption  or  certificate. 

(2)  All  process   in  the  nature  of  subpoenas,   citations,  summons  and  sub- 
poenas   in    chancery,   unless   from    the   assignment   of    errors    it   appears   that 
some  issue  is  raised  which  makes  it  necessary  for  the  court  to  inspect  such 
writs,  and  then  only  such  as  are  involved. 

In  every  transcript  wherein  any  pleading,  exhibit  or  other  paper  ap- 
pears at  more  than  one  place,  such  pleading,  exhibit  or  other  paper  shall 
be  printed  at  the  place  it  first  appears  in  said  transcript,  and  not  there- 


826  APPENDIX 

after;    but  the  omission   shall  be  indicated  by  apt  notations  and   references 
to  the  pages  of  the  printed  record  where  it  appears. 

The  clerk  shall  distribute  the  printed  copies  to  the  judges  of  the  court 
and  to  the  reporter  from  time  to  time,  as  required.  If  the  cost  of  printing 
the  record,  together  with  the  clerk's  fee  for  supervising  the  same,  shall 
be  less  than  the  amount  estimated  and  paid,  the  difference  shall  be  re- 
funded by  the  clerk  to  the  party  paying  the  same.  If  the  actual  cost  and 
the  clerk's  fee  shall  exceed  the  clerk's  estimate,  the  amount  of  such  excess 
shall  be  paid  to  the  clerk  before  he  shall  deliver  or  file  the  printed  record 
or  any  copies  thereof. 

6.  In    case    of    reversal,    affirmance    or    dismissal    with    costs,    the    amount 
of  the  costs  of  the  printing  of  the  record  and  of  the  clerk's  fee  for  super- 
vising the   same   shall   be   taxed   against  the   party   against   whom   costs  are 
given,   and   shall   be   inserted   in   the  body   of   the   mandate   or   other   proper 
process. 

7.  The    clerk    shall    receive    from    either    party,    and    use   as    parts   of   the 
printed  record  so  far  as  the  same  may  be  of  proper  size  and  type,  any  por- 
tions  which   may   have   been    printed   in   any   other   court,   and   also   printed 
copies  of  patents  and  exhibits,  allowing  the  party  furnishing  the  same  such 
sums  therefor  as  the  clerk  deems  reasonable,  to  be  added  to  and  form  a  part 
of  the  cost  of  printing. 

In  the  Sixth  circuit,  rule  23  is  as  follows: 

ORAL   ARGUMENTS. 

1.  Cases    will    not    be    taken    upon    briefs    without    oral    argument,    except 
by   permission   of  the  court  on   special   application   made  before  the  case  is 
reached. 

2.  The  appellant  shall  be  entitled  to  open  and  to  conclude.     Cross  appeals 
or  cross  writs  of  error  shall  be  argued  together  as  one  case,  and  the  plain- 
tiff below  shall  be  considered  as  appellant  under  this  rule. 

3.  Two    counsel,    and    no    more    (unless    by    special    permission),    may    be 
heard  for  each  party;    but  where  no  brief  is  filed  and  no  counsel  is  heard 
for  one  party,  only  one  counsel  will  be  heard  for  the  adverse  party. 

4.  One   hour   and    one    half   on    each    side   will   be   allowed   for   argument, 
and   no   more,   unless   by    leave    of   the   court   granted    before   the    argument 
begins.      The    time    thus    allowed   may    be    apportioned    between    the    counsel 
on  the  same  side  at  their  discretion,  provided  that  a  fair  opening  of  the  case 
is  made  by  the  appellant. 

Seventh  circuit. — 1.  In  all  cases  the  plaintiff  in  error  or  appellant  on 
docketing  a  case  and  filing  the  record  shall  enter  into  an  undertaking  to 
the  clerk  with  surety  to  be  approved  by  the  clerk  for  the  payment  of  all 
costs  which  shall  be  incurred  in  the  cause,  shall  deposit  with  the  clerk 
twenty-five  dollars  to  be  applied  to  the  payment  of  costs  and  fees,  and 
from  time  to  time  when  necessary  shall,  on  the  demand  of  the  clerk,  make 
further  deposits  for  that  use. 

2.  The  clerk,  upon  the  docketing  of  a  case,  shall  forthwith  cause  an 
estimate  to  be  made  of  the  cost  of  printing  the  record  and  of  his  fees  fpr 


BULES    OF    THE    CIRCUIT    COUKTS    OF    APPEALS  827 

preparing  it  for  the  printer  and  for  supervising  the  printing  thereof,  and 
shall  at  once  notify  the  attorney  for  the  plaintiff  in  error,  or  appellant, 
<)f  the  amount  of  such  estimate,  which  shall  be  paid  to  the  clerk  within 
ten  days  after  such  notice.  If  not  so  paid,  the  writ  of  error  or  appeal  may 
be  dismissed  upon  the  motion  of  the  opposite  party,  or  by  the  court  of  its 
own  motion. 

3.  The  clerk  shall  cause  the  record  in  each  case  to  be  printed   forthwith 
after   the   payment  of  such  estimate,   and   shall   immediately  thereafter   fur- 
nish  to  each   of  the  respective   parties  at   least  three   copies  of  the   printed 
record,  taking  a  receipt  therefor.     The  parties  may,   by  written  stipulation 
filed  with  or  prior  to  the  filing  of  the  record,  agree  that  only  parts  of  the 
record  shall  be  printed,  and  the  case  will  be  heard  on  the  parts  so  printed 
only,  unless  the  court  shall  direct  the  printing  of  other   parts. 

4.  The  clerk   shall  cause   at   least   twenty-five   copies   of   the   record   to   be 
printed  and  may  print  a  larger  number  on  the  request  of  cither  party  on 
the    payment    of    the    amount    necessary    for    the    printing    of    such    extra 
copies. 

5.  The  clerk  shall  supervise  the  printing  and  see  that  the  printed  record 
is    indexed    properly,    and    in    a    manner    to    indicate    briefly    the    character 
of  each   document  and  exhibit   referred   to.     He  shall  distribute  the   printed 
copies  to  the   judges   of  the   court   from  time   to   time   as   required.     If   the 
cost  of  printing  the  record,  together  with  the  clerk's  fee  for  supervising  the 
same,  shall  be  less  than  the  amount  estimated  and  paid,  the  difference  shall 
be  refunded  by  the  clerk  to  the  party  paying  the  same.     If  the  actual  cost 
and    the    clerk's    fee    shall   exceed   the    estimate,    the    amount    of    the    excess 
shall  be  paid  to  the  clerk  before  he  shall  deliver  or  file  the  printed  record 
or  copies  thereof. 

6.  In    case    of    reversal,    affirmance    or    dismissal    with    costs,    the    amount 
of  the  cost  of  the  printing  of  the  record  and  of  the  clerk's  fee  for  super- 
vising  the   same   shall   be   taxed  against   the   party   against   whom   costs   are 
given,  and  shall  be  inserted  in  the  body  of  the  mandate  or  other  process. 

7.  Upon    the    clerk's    producing    satisfactory   evidence    by    affidavit,    or    by 
the  acknowledgment  of  the  parties  or  their  sureties  or  attorneys,  of  having 
served  a  copy  of  the  bill  of  fees  due  from  them  respectively  in  this  court 
on    such    parties,    their    sureties    or    attorneys,    an    attachment    shall    issue 
against  such  parties  or  their  sureties,   respectively,   to  compel  the  payment 
of  said  fees. 

8.  The  clerk  shall  adopt  a  uniform  size  for  the  printing  of  all  records,  shall 
have  them  printed   in  small  pica  type,  on  clear  white  paper,  with  a  margin 
of  not   less  than   an  inch  and  a  half,   shall   show   by   note   or   memorandum 
on  the  margin  the  time  when  each  pleading  or  document  was  filed,  and  at 
the  top  of  the  pages  shall  insert  running  titles  of  their  contents. 

9.  The  briefs   of   attorneys   shall   be   printed  and   shall  conform   as  nearly 
as   practicable  to  the  size  of  the  printed   record. 

10.  The    clerk    shall,    on    or    before    the    conclusion    of    each    case,    collect 
and  file  or  otherwise  preserve  together  one  copy  of  the  printed  record  and 
of  each  brief,  printed  motion  and  argument  submitted  therein. 

11.  In   any   case   where   the   record   shall   have   been   printed   in   the   court 
below,    in   substantial    conformity    to   these   rules,    presiding   judge    may,   on 


828  APPENDIX    - 

the  application  of  the  plaintiff  in  error  or  appellant  order  that  such  printed 
record  be  used  in  place  of  the  printing  hereinbefore  provided  for.  But  the 
clerk  shall  prepare  and  cause  to  be  printed  and  attached  to  such  record  an 
index,  and  shall  be  paid  the  same  fees  for  the  indexing  and  supervising 
thereof  as  if  printed  under  his  supervision. 

12.  The  clerk  of  this  court  shall  obtain   sealed  proposal  for  the  printing 
hereinbefore  provided   for,  which   proposal  shall  be   submitted   to  the   senior 
circuit  judge  of  the  court,  who  may  award  such  printing  to  the  lowest  and 
best   bidder,   and   all   such   printing   shall   be   done   by   the    person    to   whom 
the  same  is  so  awarded,  except   in  emergencies  when  printing  may   be  done 
by   another   at  the   same   or    less   price.     And   when   a   case   shall   be   heard 
upon   the   record    printed   below,    the   costs   for    printing    shall   be    taxed    on 
the  basis  of  actual  cost  not  exceeding  the  rate  of  the  accepted  bid. 

13.  The   fees   of   the   clerk   of   this   court,   as    prescribed   by   order    of   the 
Supreme  Court,  made  February  28,  1898,  are  as  follows: 

Docketing  a  case  and  filing  the  record    $5  00 

Entering  an  appearance   25 

Transferring  a  case  to  the  printed  calendar 1  00 

Entering  a  continuance 25 

Filing  a  motion,  order,  or   other   paper    25 

Entering  any  rule,  or  making  or  copying  any  record  or  other  paper,  for 

eacli  one  hundred  words    20 

Entering  a  judgment  or  decree   1  00 

Every  search  of  the  records  of  the  court  and  certifying  the  same 1  00 

Affixing  a  certificate  and  a  seal  to  any  paper   1  00 

Receiving,  keeping,  and  paying  money,   in  pursuance  of  any  statute  or 

order  of  court,  one  per  cent   on   the   amount   so   received,   kept,   and 

paid 
Preparing  the  record  for  the  printer,  indexing  the  same,  supervising  the 

printing   and   distributing   the   copies,   for   each    printed   page   of   the 

record  and  index    25 

Making  a  manuscript  copy  of  the  record,  when  required  by  the  rules, 

for  each  one  hundred  words   (but  nothing  in  addition  for  supervising 

the    printing ) 20 

Issuing   a   writ   of   error   and   accompanying   papers,   or   a   mandate   or 

other    process    5  00 

Filing  briefs,  for  each  party  appearing 5  00 

Copy  of  an  opinion  of  the  court,  certified  under  seal  for  each  printed 

page   (but  not  to  exceed  $5.00  in  the  whole  for  any  copy)    1  00 

Attorney's  docket  fee 20  00 

Eighth  circuit. — 1.  In  cases  brought  to  this  court  in  which  the  plaintiff  in 
error  or  appellant  elects  to  waive  the  printing  of  the  record  under  the 
provisions  of  the  act  of  Congress,  entitled  "An  Act  to  Diminish  the  Ex- 
pense of  Proceedings  on  Appeal  and  Writ  of  Error  or  of  Certiorari,"  ap- 
proved February  13,  1911,  and  file  a  typewritten  or  manuscript  transcript 
of  the  record  in  this  court,  such  plaintiff  in  error  or  appellant  may  within 
twenty  days  from  and  after  the  date  of  the  filing  and  docketing  of  the 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  820 

record  in  this  court,  serve  on  the  adverse  party  a  copy  of  a  statement  of  the 
parts  of  the  record  which  he  thinks  necessary  for  the  consideration  of  the 
errors  assigned,  and  file  the  same,  with  proof  of  service  thereof,  with 
the  clerk  of  this  court;  the  adverse  party,  within  twenty  days  thereafter, 
may  designate  in  writing  and  file  with  the  clerk  additional  parts  of  the 
record  which  he  thinks  material,  and,  if  he  shall  not  do  so,  he  shall  be 
held  to  have  consented  to  a  hearing  on  the  parts  designated  by  the  plain- 
tiff in  error  or  appellant.  If  parts  of  the  record  shall  be  so  designated 
by  one  or  both  of  the  parties,  the  clerk  shall  print  those  parts  only;  and 
the  court  will  consider  nothing  but  those  parts  of  the  record  in  deter- 
mining the  questions  raised  by  the  errors  assigned.  If  at  the  hearing 
it  shall  appear  that  any  material  part  of  the  record  has  not  been  printed, 
the  writ  of  error  or  appeal  may  be  dismissed,  or  such  other  order  made 
aj  the  circumstances  may  appear  to  the  court  to  require.  If  the  defend- 
ant in  error  or  appellee  shall  have  caused  unnecessary  parts  of  the  record  to 
be  printed,  such  order  as  to  costs  may  be  made  as  the  court  shall  think 
proper. 

2.  On    the    filing    of    the    transcript    in    every    such    case    the    clerk    shall 
cause  thirty  copies  of  the  same,  or  the  parts  thereof  designated  under  this 
rule,   to   be   printed,   and   such   additional   number   of   copies   as    counsel   for 
either    of   the   parties    may    direct,    and    shall    furnish    three    copies    of    the 
record    so    printed    to    each    party    at    least    sixty    days    before    the    argu- 
ment. 

3.  In   cases  brought  to  this   court   in  which   the   record   has   been   printed 
and   used   upon    the    hearing    in    the   court    below,    and    which    substantially 
conform  to  the  printed  records  in  this  court,  the   plaintiff  in  error   or  ap- 
pellant upon  application  to  and  by  leave  of  this  court,  may  furnish  to  the 
clerk   twenty-five   copies   of   such   record,   used   on   the   hearing   in   the  court 
below,  to   be  used   in  the  preparation   of  the   printed   record   in   this   court ; 
and  the  clerk's  fee  for  preparing  the  record  for  the  printer,  indexing  same, 
supervising  the   printing  and  distributing  the   copies,   shall   be   computed   as 
if  said  record  so  furnished  had  been  printed  under  his  supervision. 

4.  The   clerk    shall   be    entitled   to    demand    of    the    plaintiff    in    error    or 
appellant  the  cost   of  pleading   the   record   before   ordering   the   same  to  be 
done. 

5.  If  the  record  shall  not  have  been  printed  when  the  case  is  reached  for 
argument,  for  failure  of  the  party  to  advance  the  cost  of  printing,  the  case 
may  be  dismissed. 

6.  In   case   of   reversal,   affirmance,   or   dismissal,   with   costs,   the   amount 
paid  for  printing  the  record  shall  be  taxed  against  the  party  against  whom 
costs  are  given. 

7.  In   any    cause   brought   to   this    court,    in    which    the    record    has    been 
printed,  in  which  a  writ  of  certiorari  shall  be  granted  under  the  provisions 
of   rule    18   of   this   court,   the    return   to   each    writ   of   certiorari    shall    be 
printed  in  the  same  manner  as  the  record  was. 

8.  If   in   any   cause    in   which   the   record   or   a    portion    thereof   has   been 
printed  it  shall  be  made  to  appear  to  this  court  that  the  printed  transcript 
does    not    substantially    conform   to    the    requirements    of   the    rules    of   this 
court,  it  may  be  rejected  and  stricken  from  the  file  and  such  order  relative 
thereto  may  be  entered  as  the  court  shall  deem  proper. 


830  APPENDIX 

Ninth  circuit. — 1.  All  records  shall  be  printed  under  the  supervision  of  the 
clerk,  and  upon  the  docketing  of  the  cause,  he  shall  cause  an  estimate  to 
be  made  of  the  expense  of  printing  the  record,  and  his  fee  for  preparing 
it  for  the  printer  and  supervising  the  printing,  and  shall  notify  the  party 
docketing  the  case  of  the  amount  of  the  estimate.  If  the  amount  so 
estimated  is  not  promptly  paid  over  to  the  clerk,  and  for  want  of  such 
payment  the  record  shall  not  have  been  printed  when  a  case  is  reached  for 
argument,  the  case  shall  be  dismissed. 

2.  Upon    payment    of    the    amount   estimated    by    the    clerk,    thirty    copies 
of  the   record   shall   be   printed,   under   his   supervision,   for   the   use   of   the 
court  and  of  counsel. 

3.  In  cases   of   appellate  jurisdiction  the   original   transcript  on   file   shall 
be  taken  by  the  clerk  to  the  printer.     But  the  clerk  shall  cause  copies   to 
be   made   for   the   printer   of   such   original   papers   sent   up   under    rule    14, 
§  4,  as  are  necessary  to  be  printed;    and  the  whole  of  the  record   in  cases 
of  original  jurisdiction. 

4.  In    all    cases,    including    cases    in    which    the    record    may    have    been 
printed  under   the   act  of  Congress,  approved   February   13,   1911,   or   other- 
wise, the  clerk  of  this  court  shall  index  the  printed  record,  and  distribute 
the  printed  copies  to  the  judges  and  the  reporter,  and  one  or  more  printed 
copies  to  the  counsel  for  the  respective  parties. 

5.  If    the    expense    of    printing    and    supervision    shall    be    less    than    the 
amount   estimated    and    paid,    the   clerk    shall    refund    the    difference    to    the 
party  paying  same.     If  the  expense  is  greater  than  the  estimate  the  amount 
of   such   excess   shall   be   paid   to   the   clerk   before   he   shall   file   the   printed 
record  or  deliver  copies  to  the  parties  or  their  counsel. 

6.  In    case    of    reversal,    affirmance    or    dismissal,   with    costs,    the   amount 
paid  for  printing  the   record   and   of  the  clerk's  fee   shall  be   taxed  against 
the  party  against  whom  costs  are  given. 

7.  The  plaintiff  in  error  or  appellant  may,  upon  filing  the  record  in  this 
court,   file   with   the   clerk   a   statement   of   the   errors   on   which   he   intends 
to  rely,  and  of  the  parts  of  the  record  which  he  thinks   necessary   for  the 
consideration   thereof,   and  forthwith   serve  on  the   adverse   party  a  copy   of 
such  statement.     The  adverse  party,  within  ten  days  thereafter,  may  desig- 
nate, in  writing,   filed  with  the  clerk,  additional  parts  of  the  record  which 
he  thinks   material;    and,   if  he   shall  not   do   so,   he   shall  be  held   to   have 
consented  to  a  hearing  on  the  parts  designated  by  the  plaintiff  in  error  or 
appellant.      If   parts   of   the   record   shall   be   so   designated   by   one   or   both 
of  the   parties,   or   if   such   parts  be  distinctly   designated   by   stipulation   of 
counsel  for   the   respective   parties,   the  clerk   shall   print  those   parts   only; 
and  the  court  will  consider  nothing  but  those  parts  of  the  record,  and  the 
errors  so  stated.     If  at  the  hearing  it  shall  appear  that  any  material  part 
of  the   record   has   not  been   printed,   the   writ   of   error   or   appeal   may   be 
dismissed,  or  such  other  order  made  as  the  circumstances  may  appear  to  the 
court  to  require.     If  the   defendant   in   error   or  appellee  shall  have  caused 
unnecessary   parts  of  the  record  to  be  printed  such  order  as  to  costs  may 
be  made  as  the  court  shall  think  proper. 

All    statements    and    stipulations    filed    hereunder    shall    distinctly    and 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  831 

accurately  refer  to  the  pages  of  the  original  certified  record  as  well  as  the 
documents  to  be  printed  or  omitted. 

8.  At  the  time  of  filing  the  record  and   docketing  the  cause,  counsel  for 
the   plaintiff   in  error   or   appellant   in   patent   cases   may   furnish   the   clerk 
with    copies    of    patent    office    drawings    and    specifications    to    be    used    as 
inserts,   and   the   same,   if   in   proper   form   and   of   convenient   size,   shall  he 
used  in  printing  the  record. 

9.  In  all  cases,  including  cases  in  which  the  record  may  have  been  printed 
under  the  act  of  Congress  approved  February  13,  1911,  or  otherwise,  the  fee 
of  the  clerk  of  this  court  for  performing  the  services  herein   required  shall 
be    twenty-five    cents    for    each    printed    page    of    the    record    and    index,    as 
provided  by  law. 

RULE    24. 
BRIEFS. 

First  circuit. — 1.  The  counsel  for  the  plaintiff  in  error  or  appellant  shall 
file  with  the  clerk  of  this  court,  at  least  six  days  before  the  case  is  called 
for  argument,  twenty  copies  of  a  printed  brief,  one  of  which  shall,  on  ap- 
plication, be  furnished  to  each  of  the  counsel  engaged  upon  the  opposite 
side. 

2.  This   brief   shall   contain,   in   order   here   stated, — 

(1)  A    concise    abstract    or    statement    of    the    case    presenting    succinctly 
the  questions  involved,  in  the  manner  in  which  they  are  reached. 

(2)  A    specification    of    the    errors    relied    upon,   which,    in    cases   brought 
up   by   writ   of  error,   shall   set  out   separately   and   particularly   each   error 
asserted  and  intended  to  be  urged;   and,  in  cases  brought  up  by  appellant, 
specifications   shall   state  as   particularly   as  may  be,  in   what   the  decree   is 
alleged  to  be  erroneous.     When  the  error  alleged  is  to  the  admission  or  to  the 
rejection    of    evidence,    the    specification    shall    quote    the    full    substance    of 
the  evidence  admitted  or  rejected.     When  the  error  alleged  is  to  the  charge 
of   the   court,   the   specification    shall   set   out   the   part   referred    to    totidem 
verbis,   whether   it   be  instructions  given   or   in   instructions   refused.     When 
the  error  alleged   is  to   a  ruling  upon   the  report  of   a   master,   the   specifi- 
cation  shall  state  the   exception  to  the  report  and  the  action  of  the  court 
upon  it. 

(3)  A  brief  of  the  argument  exhibiting  a   clear  statement   of  the  points 
of  law  or  fact  to  be  discussed,  with  a  reference  to  the  pages  of  the  record 
and  the  authorities  relied  upon  in  support  of  each  point.     When  a  statute 
of   a  state   is   cited,   so  much   thereof   as   may   be   deemed   necessary   to   the 
decision  of  the  case  shall  be  printed  at  length. 

(4)  A    specification    of   the   errors   relied    upon,    which,    in   cases   brought 
up  by  writ  of  error,  set  out  separately  and  particularly  each  error  asserted 
and  intended  to  be  urged. 

3.  The  counsel  for  defendant   in  error   or  an   appellee  shall   file  with  the 
clork  twenty  printed  copies  of  his  brief  at  least  three  days  before  the  case 
is  called  for  hearing.     His  brief  shall  be  of  a  like  character  to  that  required 
of  the  plaintiff  in  error  or  appellant,  except  that  no  specification   of  error 


832  APPENDIX 

shall   be   required,   and   no   statement  of  the  case,   unless  that   presented   by 
the  plaintiff  thereof  or  appellant  is  controverted. 

4.  When   there   is   no   assignment   of  errors,   as   required  by   §   997   of   the 
Revised    Statutes,   counsel   will   not   be   heard,   except   at   the   request   of  the 
court.     And  errors  not  specified  according  to  this  rule  will  be  disregarded; 
but   the   court,    at    its    option,    may    notice    a    plain    error    not    assigned    or 
specified.     See  rule  11. 

5.  When,   according   to   this   rule,   the   plaintiff   in    error   or   an   appellant 
is  in  default,  the  case  may  be  dismissed  on  motion;  and  when  a  defendant  is 
in  error  or  an  appellee  is  in  default,  he  will  not  be  heard,  except  on  consent 
of  his  adversary,  and  by  request  of  the  court. 

6.  When    no    counsel    appears    for    one    of    the    parties    and    no    brief    or 
argument    is   filed   only   one   counsel   will   be   heard   for   the   adverse    party; 
but,  if  a  printed  brief  or  argument  is   filed,  the  adverse   party  will  be  en- 
titled to  be  heard  by  two  counsels. 

In  the  Second  circuit,  §§  1  and  3  are  as  follows,  and  the  remainder  is  the 
same  as  in  the  first  circuit: 

1.  Counsel    for    the    plaintiff    in    error,    or    appellant,    shall    file    with    the 
clerk  of  this  court  at  least  twenty  days  before  the  case  is  called  for  argu- 
ment, ten  copies   of  a  printed  brief,   one  of  which   shall,  on   application,  be 
furnished  as  of  the  counsel  engaged  upon  the  opposite  side. 

3.  The  counsel  for  a  defendant  in  error,  or  an  appellee,  shall  file  with 
the  clerk,  at  least  ten  days  before  the  case  is  called  for  hearing,  ten  copies 
of  his  printed  brief,  one  of  which  shall,  on  application,  be  furnished  to 
each  of  the  counsel  on  the  opposite  side.  His  brief  shall  be  of  a  like  char- 
acter with  that  required  of  the  plaintiff  in  error,  or  appellant,  except  that 
no  specification  of  errors  shall  be  required,  and  no  statement  of  the  case, 
unless  that  presented  by  the  plaintiff  in  error,  or  appellant,  is  controverted. 

. 

Third  circuit.— 1.  In  each  case  in  which  the  printed  record  has  been  de- 
livered by  the  clerk  to  the  counsel  for  the  plaintiff  in  error  or  appellant 
sixty  or  more  days  before  the  first  day  of  the  term,  such  counsel  shall  file 
twenty  copies  of  his  brief  with  the  clerk  not  less  than  thirty  days  before 
the  first  day  of  such  term;  in  each  case  in  which  the  printed  record  has 
been  delivered  by  the  clerk  to  such  counsel  between  thirty  days  and  sixty 
days  before  the  first  day  of  such  term,  twenty  copies  of  such  brief  shall  be 
filed  with  the  clerk  not  less  than  twenty  days  before  the  first  day  of  such 
term;  and  in  all  other  cases  twenty  copies  of  such  brief  shall  be  filed  with 
the  clerk  not  less  than  fifteen  days  after  the  receipt  of  such  printed  record. 
Within  the  same  time  such  counsel  shall  give  to  counsel  for  the  defend- 
ant in  error  or  appellee  not  less  than  five  copies  of  such  brief. 

2.  This  brief  shall  contain,  in  the  order  here  stated — 

(a)  The  names  of  the  parties  and  the  nature  of  the  proceedings. 

(b)  A  short   abstract   of   the   bill   or   declaration   or   petition,   and   of   the 
plea  or  answer. 

(c)  A    statement   of   the   question    or   questions    involved,   which   shall   be 
in  the  briefest  and  most  general  terms,  without  names,   dates,   amounts   or 
particulars  of  any  kind  whatever. 

(d)  A  concise  abstract  or  statement  of  the  case. 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  833 

(e)  The  assignments  of  error  relied  on,  and,  where  any  assignment  of 
»rror  is  based  on  any  bill  of  exceptions  or  any  part  of  a  bill  of  exceptions. 
a  reference  to  the  particular  page  of  the  record  where  the  exception  may  be 
found. 

(/)  Argument  on  the  part  of  the  plaintiff  in  error  or  appellant,  whicli 
shall  exhibit  a  clear  statement  of  the  points  of  law  or  fact  to  be  discussed, 
with  a  reference  to  the  pages  of  the  record  and  the  authorities  relied  upon 
in  support  of  each  point.  When  a  statute  of  a  state  is  cited,  so  much 
thereof  as  may  be  deemed  necessary  to  the  decision  of  the  case  shall  be 
printed  at  length. 

3.  At  least  five  days  before  the  case  is  called  for  argument,  the  counsel 
for  the  defendant  in  error  or  appellee  shall  file  with  the  clerk  twenty 
printed  copies  of  his  brief,  and  give  not  less  than  five  copies  thereof  to  the 
counsel  for  the  plaintiff  in  error  or  appellee.  His  brief  shall  be  of  a  like 
character  with  that  required  of  the  plaintiff  in  error  or  appellant,  except 
that  no  specification  of  errors  shall  be  required,  and  no  statement  of  the 
case  unless  that  presented  by  the  plaintiff  in  error  or  appellant  is  contro- 
verted. 

Sections  4  and  5  are  the  same  as  sections  5  and  6  in  the  first  circuit. 

In  the  Fourth  circuit,  §  2,  subds.  (a)  and  (b),  and  §  3  are  the  saine 
as  in  the  first  circuit.  Sec.  4  is  the  same  as  §  5,  and  §  5  is  the  same  as 
§  6  in  that  circuit,  and  the  following  sections  are  added: 

1.  The  counsel  for  plaintiffs  in  error  or  appellant  shall  file  with  the 
clerk  of  this  court,  the  last  fifteen  days  before  every  term  or  adjourned 
term,  twenty  (20)  copies  of  a  printed  brief,  one  of  which  shall  forthwith 
be  furnished  by  the  clerk  to  each  of  the  counsels  of  record  engaged  upon 
opposite  side. 

6.  Counsel  for  either  party  may  file  with  the  clerk  of  this  court  twenty 
printed  copies  of  a  reply  brief,  provided  the  same  are  filed  at  least  three 
days  before  the  case  is  reached  in  its  regular  order  on  the  argument 
docket. 

The  rule  in  the  Fifth  circuit  is  the  same  as  in  the  first  circuit,  except 
that  subdivision  4  of  §  2  is  omitted  and  §  1  is  as  follows: 

1.  The  counsel  for  the  plaintiff  in  error,  appellant  or  petitioner,  shall 
file  with  the  clerk  of  this  court,  at  least  fifteen  days  in  ordinary  cases,  and 
five  days  in  preference  cases,  before  the  case  is  called  for  argument,  twenty 
copies  of  the  printed  brief,  one  to  be  signed  in  handwriting  by  an  attorney 
of  this  court,  who  has  entered  an  appearance  in  the  case:  one  copy  of  the 
brief  shall,  on  application,  be  furnished  to  each  of  the  counsel  engaged  upon 
the  opposite  side. 

In  the  Sixth  circuit,  rule  24  is  as  follows: 

MOTIONS    AND    HEARING    THEREON. 

1.  Motion  shall  be  filed  with  the  clerk  and  shall  contain  a  brief  statement 
of  the  facts  and  of  the  objects  of  the  motion,  and  be  accompanied  by  such 
affidavits  as  are  thought  proper. 
Montg—  53. 


834  APPENDIX 

2.  Counsel  making  the  motion  shall  serve  a  copy  thereof  and  of  the  ac- 
companying papers  and  a  notice  of  hearing  upon  the  adverse  counsel  and  also 
copy  of  any  brief  or  any  argument  to  be  presented  in  support  of  the  motion. 
Sucli   notice  may   be  for  any   day   after   four   days   from   the   service.     The 
opposing   party   may,  on   or   before  the   day   named   in   the   notice  or   within 
any  extension   of  time  made  by   the   court   or   a   judge   thereof,   file   counter 
showing   or   brief;    and   the  motion   will   then   stand   submitted,   unless   oral 
argument   is  directed.     Except  by  stipulation,  no  motion  will  be  considered 
without  acknowledgment  or  proof  of  such  notice. 

3.  Upon  motion,  there  will  be  no  oral  argument,  except  leave  of  the  court 
first  obtained;   and  in  such  case,  the  court  will  fix  the  day  for  hearing  and 
the  time  to  be  allowed  for  argument  and  the  clerk  will  notify  counsel. 

In  the  Seventh  circuit,  §  2,  subds.  1,  2  and  3,  and  §§  5  and  6,  are  the  same 
as  in  the  first  circuit,  subd.  4  of  §  2  is  omitted,  and  the  remainder  is  as  fol- 
lows : 

1.  The  counsel  for  the  plaintiff  in  error  or  appellant  shall  file  with  the 
clerk  of  this  court,  within  twenty  days  after  the  date  of  the  delivery  by  the 
clerk  of  the  printed  record,  20  copies  of  a  printed  brief,  one  of  which  shall, 
on  application,  be  furnished  to  each  of  the  counsel  engaged  upon  the  opposite 
side. 

3.  The  counsel  for  the  defendant  in  error  or  the  appellee  shall  file  with  the 
clerk  twenty  printed  copies  of  his  brief  within  twenty  days  after  the  filing 
of  the  brief  of  the  plaintiff  in  error  or  appellant.    His  brief  shall  conform  to 
the  requirements  of  this  rule  except  that  no  specification  of  errors  shall  be 
required,  and  no  statement  of  the  case,  unless  that  presented  by  the  plaintiff 
in  error  or  appellant  is  controverted.     Either  party,  at  or  before  the  argu- 
ment of  the  cause,  may  file  a  supplemental  brief  strictly  confined  to  matter 
in  reply  to  the  brief  of  the  opposite  party. 

4.  When  there  is  no  assignment  of  errors,  as  required  by  §  997  of  the  Re- 
vised Statutes,  counsel  will  not  be  heard,  except  at  the  request  of  the  court, 
and  errors  not  specified  according  to  this  rule,  and  rule  11,  ante,  will  be  dis- 
regarded; but  the  court  at  its  option  may  notice  a  plain  error  involving  the 
merits  of  the  case,  though  not  assigned  or  specified,  and  though  the  question 
be  not  saved  according  to  the  strict  rules  of  practice,  if  it  be  apparent  of 
record  that  the  point  was  contested  and  not  waived  in  the  court  below. 

In  the  Eighth  circuit,  this  rule  is  the  same  as  in  the  first  circuit,  except 
that  subd.  4  of  §  2  is  omitted  and  §  1,  main  statement  of  §  2  and  §  3  are  as 
follows: 

1.  Counsel  for  the  plaintiff  in  error  or  appellant  shall  file  with  the  clerk  of 
this  court,  at  least  forty  days  before  the  case  is  called  for  argument,  twenty 
copies  of  a  printed  brief,  one  of  which  shall,  on  application,  be  furnished  to 
each  of  the  counsel  engaged  upon  the  opposite  side. 

2.  This  brief  shall  be  printed  on  unglazed  paper,  and  it  and  all  quotations 
contained  therein  shall  be  in  substantial  conformity  with  the  size  and  type 
prescribed  by  rule  26  for  the  printing  of  records  and  shall  contain,  in  order 
here  stated. 

3.  The  counsel  for  a  defendant  in  error  or  an  appellee  shall  file  with  the 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  835 

clerk  twenty  copies  of  his  brief  printed  on  unglazed  paper  and  in  substantial 
conformity  with  the  size  and  type  prescribed  by  rule  26  for  the  printing  of 
records,  at  least  ten  days  before  the  case  is  called  for  hearing.  His  brief 
shall  be  of  a  like  character  with  that  required  of  the  plaintiff  in  error  or  ap- 
pellant, except  that  no  specification  of  errors  shall  be  required,  and  no  state- 
ment of  the  case,  unless  that  presented  by  the  plaintiff  in  error  or  appellant 
is  controverted. 

In  the  Ninth  circuit  this  rule  is  the  same  as  in  the  first  circuit,  except  that 
subd.  4  of  §  2  is  omitted,  and  §  1  is  as  follows: 

1.  The  counsel  for  the  plaintiff  in  error  or  appellant  shall  file  with  the 
clerk  of  this  court  twenty  copies  of  a  printed  brief,  and  serve  upon  counsel 
for  the  defendant  in  error  or  the  appellee  one  copy  thereof,  at  least  ten  days 
before  the  case  is  called  for  argument. 

RULE    25. 

ORAL   ARGUMENTS. 

1.  The  plaintiff  in  error  or  appellant  in  this  court  shall  be  entitled  to  open 
and  conclude  the  argument  of  the  case.     But  where  there  are  cross  appeals 
they  shall  be  argued  together  as  one  case,  and  the  plaintiff  in  the  court  below 
shall  be  entitled  to  open  and  conclude  the   argument. 

2.  One  counsel  will  be  heard  for  each  party  on  the  argument  of  a  case. 

3.  Two  hours  on  each  side  will  be  allowed  for  the  argument  and  no  more, 
without  special  leave  of  the  court  granted  before  the  argument  begins.     The 
time  thus  allowed  may  be  apportioned  by  the  counsel  on  the  same  side  at 
their  discretion,  provided,  always,  that  a   fair  opening  of  the  case  shall   be 
made  by  the  party  having  the  opening  and  closing  arguments. 

In  the  Second  circuit,  §  3  is  as  follows: 

3.  Upon  writs  of  error,  appeals  in  admiralty,  appeals  from  orders  grant- 
ing a  preliminary  injunction  pending  appeals  in  customs  cases,  one  hour  on 
each  side  and  in  other  cases  one  hour  and  a  half  will  be  allowed.  But  in  all 
cases  where  there  are  no  difficult  questions  of  law  and  the  amount  involved 
does  not  exceed  five  hundred  dollars,  and  in  appeals  and  petitions  for  review 
in  bankruptcy  only  one  half  hour  on  each  side  will  be  allowed.  No  more  time 
than  above  specified  will  be  allowed  without  leave  of  the  court  granted  be- 
fore the  argument  begins.  The  time  thus  allowed  may  be  apportioned  be- 
tween the  counsel  on  the  same  side  at  their  discretion,  provided  always  that 
a  fair  opening  of  the  case  shall  be  made  by  the  party  having  the  opening  and 
closing  arguments. 

In  the  Fifth  circuit  §  3  is  as  follows: 

3.  One  hour  will  be  allowed  for  the  plaintiff  in  error  or  appellant  to  open 
and  present  his  case,  and  one  hour  will  be  allowed  to  the  defendant  in  error 
or  appellee  to  answer;  thirty  minutes  will  then  be  allowed  to  the  plaintiff 
in  error  or  appellant  to  reply.  No  more  time  will  be  allowed  for  argument 
without  special  leave  of  the  court. 

In  the  Sixth  circuit  this  rule  is  as  follows: 


836  APPENDIX 

OPINIONS. 

1.  All  opinions  delivered  by  the  court  will  immediately  upon  the  delivery 
thereof,  be  handed  to  the  clerk  to  be  recorded. 

2.  The  clerk  shall  cause  to  be  printed  any   manuscript  opinion   filed   with 
him.    An  opinion  printed  under  the  supervision  of  the  clerk  or  a  judge,  need 
not  be  copied  into  a  book  of  records;   but  at  the  hearing  of  each  term  the 
clerk  shall  cause  such  printed  opinion  to  be  bound  in  a  substantial  manner 
into  one  or  more  volumes,  and  when  so  bound  they  shall  be  deemed  to  have 
been  recorded  within  the  meaning  of  this  rule. 

In  the  Seventh  circuit  the  following  is  added  to  the  above: 

4.  Reading  at  length  from  briefs  or  reported  cases  shall  not  be  indulged. 

In  the  Ninth  circuit,  §  3  is  as  follows: 

3.  One  hour  on  each  side  will  be  allowed  for  the  argument,  and  no  more, 
without  special  leave  of  the  court,  granted  before  the  argument  begins.     The 
time  thus  allowed  may  be  apportioned  between  the  counsel  on  the  same  side 
at  their  discretion;   provided,  always,  that  a   fair  opening  of  the  case  shall 
be  made  by  the  party  having  the  opening  and  closing  arguments. 

RULE  26. 
FORM  OF  PRINTED  RECORDS,  ARGUMENTS  AND  BRIEFS. 

First  circuit. — All  records,  arguments,  and  briefs,  printed  for  the  use  of  the 
court,  must  be  in  such  form  and  size  that  they  can  be  conveniently  bound  to- 
gether, so  as  to  make  an  ordinary  octavo  volume. 

Second  circuit. — All  arguments  and  briefs  printed  for  the  use  of  the  court 
must  be  printed  upon  a  page  eleven  inches  long  by  seven 'inches  wide  and 
must  have  a  margin  of  at  least  two  inches  in  width. 

OPINIONS  OF  THE  COURT. 

Third  circuit. — 1.  All  written  opinions  delivered  by  the  court  shall  be  filed 
by  the  clerk. 

FORMS  OF  PRINTED  RECORD,  ARGUMENTS,  AND  BRIEFS. 

Fourth  circuit. — All  transcripts  of  record,  addenda  thereto,  arguments  and 
briefs  printed  for  the  use  of  this  court  shall  be  in  small  pica  type,  24  pica 
"ems"  to  a  line,  on  unglazed  paper,  with  an  index,  and  a  suitable  cover  con- 
taining the  title  of  the  court,  the  cause,  and  the  court  from  which  the  case  is 
brought  into  this  court,  and  the  number  of  the  case.  Size  of  pages  to  be 
9}  x  5J  inches,  except  that  in  patent  cases  the  size  of  the  pages  shall  be 
TO?  x  7§  inches;  that  is  to  say,  large  enough  to  bind  in  copies  of  Patent  Office 
drawings  and  specifications  without  folding.  So  much  of  the  record  as  was 
printed  in  the  court  below  may  be  used  in  this  court  if  it  conforms  to  this 
rule. 

Fifth   circuit. — All   arguments,  briefs,  motions  and  petitions   for  rehearing 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  837 

printed  for  the  use  of  the  court  must  be  printed  on  white  book  paper  size  of 
paper  page, 'trimmed,  to  be  6Jx9|  inches;  size  of  type  page  to  be  4x7  inches, 
sexclusive  of  folio  line;  margin  to  be  properly  arranged  with  view  of  rebind- 
ing.     Type  must  not  be  smaller  than  long  primer. 

INTEREST    AND   DAMAGES. 

Sixth  circuit. — 1.  Where  a  judgment  or  decree  of  the  district  court  at  law 
in  equity,  bankruptcy,  or  admiralty,  requiring  the  payment  of  money,  is  af- 
lirmed  by  this  court,  interest  thereon  from  its  date  and  until  payment  shall 
be  culminated  and  levied  at  the  same  rate  borne  by  similar  judgments  or  de- 
crees in  the  courts  of  the  state  where  such  district  court  sits. 

2.  Where,  in  any  such  case  the  review  in  this  court  has  delayed  proceedings 
to  collect  the  awarding  in  the  district  court,  and  shall  appear  to  this  court 
to  have  been  had  or  prosecuted  merely  for  delay,  damages  at  a  rate  not  ex- 
ceeding ten  per  cent  of  the  award,  and  in  addition  to  interest  may  be  imposed 
by  this  court. 

OPINIONS  OF  THE  COURT. 

Seventh  circuit. — 1.  All  opinions  delivered  by  the  court  shall,  immediately 
upon  the  delivery  thereof,  be  handed  to  the  clerk  to  be  recorded. 

2.  The  original  opinions  of  the  court  shall  be  filed  with  the  clerk  of  this 
court  for  preservation. 

3.  Opinions  printed  under  the  supervision  of  the  judge  delivering  the  same 
need  not  be  copied  by  the  clerk  into  a  book  of  records,  but,  at  the  end  of 
each  term,  the  clerk  shall  cause  such  printed  opinions  to  be  bound  in  a  sub- 
stantial manner  into  one  or  more  volumes,  and  when   so  bound   they   shall 
be  deemed  to  have  been  recorded  within  the  meaning  of  this  rule. 

Eighth  circuit. — 1.  All  transcripts  of  record,  arguments  and  briefs  for  the 
use  of  this  court,  except  in  patent  causes  as  hereinafter  provided,  shall  be 
printed  on  unglazed  paper  not  less  than  5£  inches  in  width,  x  9£  inches  in 
length,  including  a  sufficient  margin  so  that  they  can  be  conveniently  trimmed 
and  bound  in  volumes.  The  paper  should  equal  a  weight  of  eighty  pounds 
per  ream  on  basis  of  size  of  sheet  25x38  inches. 

2.  All  records  and  briefs  in  patent  causes  may  be  printed  on  unglazed  paper, 
of  the  weight,  as  provided  in  §  1  of  this  rule,  of  such  size  that  copies  of  let- 
ters patent  may  be  inserted  therein  without  folding;  but  the  size  of  such  rec- 
ords and  briefs  in  patent  causes  shall  not  be  less  than  7^  inches  wide  and  9i 
inches  long,  so  that  the  records  and  briefs  can  be  conveniently  trimmed  and 
bound  in  volumes. 

3.  All  records,  briefs,  supplemental  transcripts  and  returns  to  writs  of  cer- 
tiorari  shall  be  printed  in  clear  11-point  or  small  pica  type  (never  smaller  than 
10-point)   of  26  pica  or  28  small  pica  ems  to  a  line,  and  52  lines,  including 
running   head,   solid,  per   printed   page,  containing  substantially   1,400   small 
pica  ems.     Where  testimony  or  deposition  by  question  and  answer  are  print- 
ed, the  answer  shall  follow  on  the  same  line  as  question  whenever  the  same 
can  be  done. 

4.  All  indexes  to  records  and  tabular  exhibits,  which  from  their  nature  re- 
quire smaller  type  may  be  printed  in  8-point.  or  brevier  type. 


838  APPENDIX 

5.  All  covers  for  records  shall  be  printed  in  a  neat  and  workmanlike  man- 
ner on  substantial  paper  equal  to  a   weight  of  96  pounds  per  ream  on  the 
basis  of  a  sheet  25x40  inches,  and  shall  contain  in  conspicuous  type  the  fol- 
lowing matter,  viz.: 

First.  TRANSCRIPT   OF    RECORD. 

Second.  UNITED  STATES  CIRCUIT  COURT  OF  APPEALS  EIGHTH  CIRCUIT. 

Third.  The  abbreviation  for  number  "No."  followed  by  a  blank  line  }  of 
an  inch  in  length. 

Fourth.     The  title  of  the  cause  as  it  will  be  docketed  in  this  court,  vie. : 

,  Appellant   (or  Plaintiff  in  Error)  as  the  case  may  be, 

vs ,  Appellee  (or  Defendant  in  Error) . 

Fifth.  The  words  "In  Error  to"  (or  "Appeal  from")  as  the  nature  of  the 
case  may  require,  followed  by  the  correct  title  of  the  trial  court. 

6.  Unless   otherwise   expressly   directed   by   counsel,   the   full   titles   of   the 
court  and  cause  once  correctly  shown  in  the  printed  transcript  shall  not  be 
repeated  when  unchanged.     There  shall  be  placed  at  the  head  of  each  subse- 
quent pleading,  etc.,  a  brief  designation  of  its  character. 

Unless  otherwise  expressly  directed  by  counsel,  the  indorsements  on  plead- 
ings, etc.,  shall  not  be  printed  in  full;  it  shall  be  sufficient  to  print:  "Filed 

in  the  Court  on  ,"  giving  the  correct 

date  and  name  of  the  court. 

The  date  of  all  orders  and  decrees  and  the  name  of  the  judge  or  judges  mak- 
ing them  shall  always  appear. 

In  printed  transcripts  the  pleadings,  orders,  testimony  of  witnesses,  etc., 
shall  be  separated  by  a  face  rule  three  inches  long.  The  clerk  shall  indicate 
to  the  printer  the  appropriate  places  therefor. 

When  inserts  are  folded  several  times  to  conform  to  the  size  of  the  printed 
record,  stubs  should  be  inserted  at  the  binding  side  of  the  record  to  equalize 
the  space  occupied  by  the  folds.  Unmounted  photographs  should  be  used 
when  copies  of  such  are  required  in  printed  records. 

As  this  rule  is  intended  primarily  for  the  guidance  of  the  printer  his  at- 
tention should  be  directed  thereto  before  the  record  or  brief  is  printed. 

A  sample  copy  of  a  printed  record  will  be  furnished  by  the  clerk  of  this 
court  on  application  therefor. 

Records  and  briefs  not  printed  in  substantial  conformity  with  the  pro- 
visions of  this  rule  will-  not  be  accepted  or  filed. 

FORM  OF  PRINTED  RECORDS,  ARGUMENTS,  BRIEFS,  AND  PETITIONS 

FOR  REHEARING. 

Ninth  circuit. — 1.  All  records  printed  for  the  use  of  the  court  must  be  print- 
ed on  unruled  white  writing  paper,  9^  inches  long  and  6i  inches  wide.  The 
printed  page,  exclusive  of  any  marginal  note,  reference  or  running  head,  must 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  839 

be  7  inches  long  and  4  inches  wide,  excepting  in  patent  cases  where  counsel 
furnish  to  the  clerk  at  the  time  of  docketing  the  cause  patent  office  draw: 
frigs  and  specifications  for  insertion.  In  such  cases  the  margin  of  the  record 
may  be  sufficiently  enlarged  to  accommodate  such  drawings  and  specifications. 
The  record  must  be  properly  indexed.  Pica  double-leaded  is  the  only  mode 
of  composition  allowed. 

2.  All  argument,  briefs  and  petitions  for  rehearing,  printed  for  the  use  of 
the  court,  must  be  printed  on  unruled  white  writing  paper,  9£  inches  long  and 
6}  inches  wide.  The  printed  page,  exclusive  of  any  marginal  note,  reference 
or  running  head,  must  be  7  inches  long  and  4  inches  wide.  Pica  double  leaded 
is  the  only  mode  of  composition  allowed. 

RULE  27. 
COPIES   OF  RECORDS  AND  BRIEFS. 

The  clerk  shall  carefully  preserve  in  his  office  one  copy  of  a  printed  record 
in  every  case  submitted  to  the  court  for  its  consideration  and  of  all  printed 
motions,  briefs,  and  arguments  filed  therein. 

In  the  Third  circuit  this  rule  is  as  follows: 

REHEARING. 

1.  A  petition  for  rehearing  a  cause  may  be  filed  with  the  clerk  at  any  time 
within  thirty  days  after  the  entry  therein  of  the  final  judgment  or  final  de- 
cree of  this  court,  and,  if  the  term  within  which  such  judgment  or  decree  shall 
have  been  entered  shall  expire  during  said  period  of  thirty  days,  the  judgment 
or  decree,  and  the  record  on  which  the  same  shall  have  been  entered,  shall 
nevertheless  remain  subject  to  the  control  of  this  court  until  the  full  expiration 
of  the  time  herein  allowed  for  the  filing  of  the  petition;  Provided,  however, 
that  no  such  petition  shall  be  filed  after  this  court,  by  any  order  made  with- 
in said  period  of  thirty  days,  shall  have  directed  the  immediate  issue  of  a 
mandate  or  other  process  in  the  nature  of  a  procedendo  (see  rule  30).  The 
petition  shall  be  printed,  shall  briefly  and  distinctly  state  the  reasons  for  a 
rehearing,  and  shall  be  supported  by  the  certificate  of  counsel. 

Fourth  circuit. — The  clerk  shall  cause  to  be  bound  two  copies  of  the  print- 
ed record  in  every  case,  and  of  all  printed  motions,  briefs  and  arguments  filed 
therein ;  one  copy  to  be  carefully  preserved  in  his  office,  and  one  copy  for  the 
use  of  the  court  library.  The  cost  of  the  same  to  be  paid  for  by  the  clerk 
out  of  the  revenues  of  his  office. 

COSTS. 

Sixth  circuit. — 1.  Where  any  case  shall  be  dismissed  out  of  this  court  for 
lack  of  jurisdiction  herein,  only  such  costs  as  are  incidental  to  hearing  and 
determining  the  question  of  jurisdiction  will  be  awarded;  in  all  other  cases 
(except  when  provided  by  statute  or  general  rule)  upon  the  final  disposition 
of  a  proceeding  in  this  court  costs  will  be  awarded  to  the  party  here  prevail- 


840  APPENDIX 

ing,  unless  the  court,  by  a  special  direction,  denies,  otherwise  awards  or  ap- 
portions the  costs. 

2.  In  cases  to  which  the  United  States  is  a  party,  no  costs  in  this  court 
will  be  awarded. 

3.  In  denying  or  apportioning  costs  under  clause  1,  the  court  will  enforce, 
as  far  as  possible,  the  duty  of  each  party  to  confine  within  the  limits  pre- 
scribed by  rules  10  and  15  the  bill  of  exception,  statement  of  evidence,  and 
transcript. 

4.  The  cost  of  stenographers'  transcripts  of  testimony  used  in  settling  a  bill 
of  exceptions,  or  a  statement  of  evidence,  will  not  be  taxed  in  this  court,  but 
shall  be  awarded  and  taxed  by  the  court  below  as  mandate,  as  this  court  may 
direct,  or  lacking  such  direction  as  to  that  court  shall  seem  proper. 

5.  When  costs  are  allowed  it  shall  be  the  duty  of  the  clerk  to  insert  the 
amount  thereof  in  the  body  of  the  mandate  or  other  process  sent  to  the  court 
below,  and  annex  to  the  same  a  bill  of  items  taxed  in  detail. 

6.  The  proper  fees  of  the  clerk  therefor  shall  be  paid  before  any  transcript 
of  the  record  in  any  case  shall  be  transmitted  to  the  Supreme  Court. 

TABLE  OF  COSTS. 

Order  promulgated  by  the  Supreme  Court  of  the  United  States 
February  28,  1898. 

Ordered,  In  pursuance  of  the  Act  of  Congress  of  February  19,  1897  (29 
Stat.  536,  c.  263),  that  the  following  table  of  fees  and  costs  in  the  circuit 
courts  of  appeals  be,  and  the  same  is  hereby,  established,  to  take  effect  on 
the  first  day  of  March,  A.  D.  1898,  and  no  other  fees  and  costs  than  those 
therein  named  shall  thereafter  be  charged: 

Docketing  a  case  and  filing  the  record $  5  00 

Kntering  an  appearance 25- 

Transferring  a  case  to  the  printed  calendar 1  00 

Kntering  a   continuance    25 

Filing  a  motion,  order  or  other  paper   25 

Kntering  any  rule,  or  making  or  copying  any  record  or  other  paper, 

for  each  one  hundred  words  '.  . .          20" 

Entering  a  judgment  or  decree 1  00 

Every   search  of  the  records  of  the  court  and'  certifying  the  same    . .      1  00 

Affixing  a  certificate  and  a  seal  to  any  paper   1  00 

Receiving,  keeping  and  paying  money  in  pursuance  of  any  statute 
or  order  of  court,  one  per  cent,  on  the  amount  so  received,  kept 
and  paid. 

Preparing  the  record  for  the  printer,  indexing  the  same,  supervising 
the  printing  and  distributing  the  copies,  for  each  printed  page  of 

the  record  and  index   25 

flaking  a  manuscript  copy  of  the  record,  when  required  by  the  rules, 
for  each  one  hundred  words  (but  nothing  in  addition  for  super- 
vising the  printing)  29 

Issuing  a   writ  of  error  and   accompanying  papers,  or  a   mandate   or 

other  process   5  00 


BULKS    OF    THE    CIRCUIT    COURTS    OF    APPEALS  8-1-1 

Filing  briefs,  for  each  party  appearing   $  5  00 

<>opy  of  an  opinion  of  the  court,  certified  under  seal,  for  each  printed 

page  (but  not  to  exceed  five  dollars  in  the  whole  for  any  copy)   ....      1  00 
Attorneys'  docket  fee 20  00 

REHEARING. 

Seventh  circuit. — A  petition  for  rehearing  must  be  filed  within  thirty  days 
after  entry  of  judgment  or  decree,  or  after  filing  of  the  opinion,  shall  be  in 
print,  and  be  served  forthwith  by  copy  upon  the  opposing  party,  who,  within 
twenty  days  from  such  service,  may  file  a  printed  answer,  and  the  petition 
shall  be  determined  without  oral  arguments,  unless  otherwise  ordered.  If  a 
petition  be  not  filed  within  the  time  allowed,  and  upon  the  overruling  of  a 
petition,  the  clerk  shall,  without  special  order,  issue  the  mandate  of  the  court 
to  the  court  below.  Twenty  copies  of  such  petition  or  answer  shall  be  filed 
with  the  clerk  of  this  court. 

Eighth  circuit. — The  clerk  shall  cause  to  be  bound  in  volumes  in  a  substan- 
tial manner  and  shall  carefully  preserve  in  his  office  one  copy  of  the  printed 
record  in  every  case  submitted  to  the  court  for  its  consideration,  and  of  all 
printed  motions,  briefs,  and  arguments  filed  therein. 

RULE  28. 
OPINIONS  OF  THE  COURT. 

1.  All  opinions  delivered  by  the  court  shall,  immediately  upon  the  delivery 
thereof,  be  handed  to  the  clerk  to  be  recorded. 

2.  The  original  opinions  of  the  court  shall  be  filed  with  the  clerk  of  this 
court  for  preservation. 

3.  Opinions  printed  under  the  supervision  of  the  judge  delivering  the  same 
need  not  be  copied  by  the  clerk  into  a  book  of  records;  but,  at  the  end  of 
each  term,  the  clerk  shall  cause  such  printed  opinions  to  be  bound  in  a  sub- 
stantial manner  into  one  or  more  volumes,  and  when  so  bound  they  shall  be 
deemed  to  have  been  recorded  within  the  meaning  of  this  rule. 

INTEREST. 

Third  circuit. — 1.  In  cases  where  a  writ  of  error  is  prosecuted  in  this  court, 
and  the  judgment  of  the  inferior  court  is  affirmed,  the  interest  shall  be  calcu- 
lated and  levied,  from  the  date  of  the  judgment  below  until  the  same  is 
paid,  at  the  same  rate  that  similar  judgments  bear  interest  in  the  courts  of 
the  state  where  such  judgment  was  rendered. 

2.  In  all  cases   where  a   writ   of  error   shall   delay  the   proceedings   on   tlie 
judgment  of  the  inferior  court,  and  shall  appear  to  have  been  sued  out  merely 
for  delay,  damages  at  a  rate  not  exceeding  ten  per  cent,  in  addition  to  in- 
terest, shall  be  awarded  upon  the  amount  of  the  judgment. 

3.  The  same  rule  shall  be  applied  to  decrees  for  the  payment  of  money  in 
cases  in  equity,  unless  otherwise  ordered  by  this  court. 


842  APPENDIX 

4.  In  cases  in  admiralty,  damages  and  interest  may  be  allowed,  if  specially 
directed  by  the  court. 

Fourth  circuit. — 1.  All  opinions  delivered  by  the  court  shall  be  printed  un- 
der the  supervision  of  the  judge  delivering  the  same,  or  of  one  of  the  circuit 
judges,  the  cost  of  such  printing  to  be  paid  by  the  clerk  out  of  the  revenues 
of  his  office  and  charged  to  the  litigants  in  the  respective  cases,  to  be  taxed 
and  allowed  as  other  costs. 

2.  The  original  opinions  of  the  court  shall  be  filed  with  the  clerk  of  this 
court  for  preservation. 

3.  The  clerk  of  this  court  shall  from  time  to  time  cause  two  sets  of  the 
printed  opinions  of  this  court  to  be  bound  in  a  substantial  manner  into  vol- 
umes, one  set  to  be  kept  in  the  clerk's  office  and  one  set  to  be  kept  in  the 
court  library. 

REHEARINGS. 

Sixth  circuit. — A  petition  for  rehearing  after  judgment  can  be  presented 
only  within  thirty  days  (at  the  same  or  succeeding  term)  after  the  day 
when  the  printed  opinion  of  the  court  is  filed,  and  can  be  obtained  by  coun- 
sel for  the  parties  (which  date  the  clerk  will  note  upon  the  docket),  unless 
by  special  leave  granted  during  such  thirty  days  by  the  court  or  a  judge 
thereof,  and  must  be  printed,  and  briefly  and  distinctly  state  its  grounds,  and 
be  supported  by  certificate  of  counsel,  and  will  not  be  granted,  or  permitted 
to  be  argued,  unless  a  judge  who  concurred  in  the  judgment  desires  it  and  a 
majority  of  the  court  so  determines. 

INTEREST. 

Seventh  circuit. — 1.  When  a  judgment  for  the  payment  of  money  is  affirmed 
by  this  court,  the  interest  thereon  shall  be  calculated  and  levied  from  the 
date  of  the  judgment  below  until  the  same  is  paid,  and  at  the  same  rate 
that  similar  judgments  bear  interest  in  the  courts  of  the  state  where  such 
judgment  was  rendered. 

2.  In  all  cases  where  a   writ  of  error  shall  delay  the  proceedings  on   the 
judgment   of   the    inferior   court,   and   shall    appear   to   have   been    sued    out 
merely  for  delay,  damages  at  a  rate  not  exceeding  ten  per  cent,  in  addition 
to  interest,  shall  be  awarded  on  the  amount  of  the  judgment. 

3.  The  same  rule  shall  be  applied  to  decrees  for  the  payment  of  money  in 
cases  in  equity,  unless  otherwise  ordered  by  this  court. 

4.  In  cases  in  admiralty,  damages  and  interest  may  be  allowed,  if  specially 
directed  by  the  court. 

5.  In  cases  where  money  is  paid  into  court,  any  party  interested  may  move 
for  an  order  that  the  clerk  deposit  the  same  under  the  direction  of  the  court. 
On  deposits  so  made,  the  clerk  shall  account  for  such  interest  as  he  may  have 
collected  on  the  fund.    But  without  such  order  he  shall  not  be  required  to  ac- 
count for  interest. 

Ninth  circuit. — The  original  opinions  of  the  court   shall  be  filed  with  the 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  843 

clerk   of   this   court   for  preservation,  and   when   so   filed   the   same  shall   be 
deemed  to  have  been  recorded  within  the  meaning  of  this  rule. 

RULE  29. 
REHEARING. 

First  circuit. — A  petition  for  a  rehearing  after  judgment  may  be  filed  at 
the  term  at  which  the  judgment  is  entered,  and  within  one  calendar  month 
after  such  entry,  and  not  later  unless  by  leave  granted  during  the  term.  It 
must  be  in  print,  in  the  form  and  style  required  by  rule  26,  and  it  must 
briefly  and  distinctly  state  its  grounds,  and  be  supported  by  a  certificate  of 
counsel.  It  will  not  be  granted,  or  permitted  to  be  argued,  unless  a  judge 
who  concurred  in  the  judgment  desires  it  and  a  majority  of  the  court  so  de- 
termines. Provided,  Whenever  a  judgment  is  entered  within  less  than  a 
month  before  the  term  adjourns,  the  petition  may  be  filed  within  a  month 
after  the  entry  of  judgment,  and  with  the  same  effect  after  the  term  as 
though  filed  before  the  adjournment. 

Second  circuit. — A  petition  for  rehearing  after  judgment  can  be  presented 
only  at  the  term  at  which  judgment  is  entered,  unless  by  special  leave  granted 
during  the  term;  and  must  be  printed  and  briefly  and  distinctly  state  its 
grounds,  and  be  supported  by  certificate  of  counsel;  and  will  not  be  granted, 
or  permitted  to  be  argued,  unless  a  judge  who  concurred  in  the  judgment  de- 
sires it,  and  a  majority  of  the  court  so  determines. 

COSTS. 

Third  circuit. — 1.  In  all  cases  where  any  suit  shall  be  dismissed  in  this 
court,  except  where  the  dismissal  shall  be  for  want  of  jurisdiction,  costs  shall 
be  allowed  to  the  defendant  in  error  or  appellee,  unless  otherwise  agreed  by 
the  parties. 

2.  In  all  cases  of  affirmance  of  any  judgment  or  decree  in  this  court,  costs 
shall  be  allowed  to  the  defendant  in  error  or  appellee  unless   otherwise  or- 
dered by  the  court. 

3.  In  cases  of  reversal  of  any  judgment  or  decree  in  this  court,  costs  shall 
be  allowed  to  the  plaintiff  in  error  or  appellant,  unless  otherwise  ordered  by 
the  court.     The  cost  of  transcript  of  record  from  the  court  below  shall  be 
taxable  in  that  court  as  costs  in  the  case. 

4.  Neither  of  the  foregoing  sections  shall  apply  to  cases  where  the  United 
States  are  a  party;  but  in  such  cases  no  costs  shall  be  allowed  in  this  court 
for  or  against  the  United  States. 

5.  When  costs  are  allowed  in  this  court,  it  shall  be  the  duty  of  the  clerk 
to  insert  the  amount  thereof  in  the  body  of  the  mandate,  or  other  process 
sent  to  the  court  below  and  annexed  to  the  same,  the  bill  of  items  taxed  in 
detail. 

6.  In  all  cases  certified  to  the  Supreme  Court  or  removed  thereto  by  cer- 
tiorari  or  otherwise,  the  fees  of  the  clerk  of  this  court  shall  be  paid  before 
a  transcript  of  the  record  shall  be  transmitted  to  the  Supreme  Court. 

7.  In  pursuance  of  the  act  of  Congress  of  February  19,  1897   (29  Stat.  at  L. 


844:  APPENDIX 

536,  ch.  263),  and  of  the  order  of  the  Supreme  Court  of  January  10,  1898,  as 
amended  February  28,  1898  (90  Fed.  Rep.  clxxi),  the  following  table  of  fees 
and  costs  is  established  for  this  court: 

Docketing   a   case   and   filing   the   record    $5  00 

Entering  an  appearance 25 

Transferring  a  case  to  the  printed  calendar    1  00 

Entering  a  continuance  25 

Filing  a  motion,  order,  or  other  paper   25 

Entering  any  rule,   or  making  or   copying  any   record   or   other   paper, 

for  each  one  hundred  words    20 

Entering  a  judgment  or  decree 1  00 

Every  search  of  the  records  of  the  court  and  certifying  the  same   ....   1  00 

Affixing  a  certificate  and  a  seal  to  any  paper    1  00 

Receiving,  keeping,  and  paying  money,  in  pursuance  of  any  statute  or 

order  of  court,  one  per  cent  on  the  amount  so  received,  kept  and  paid. 
Preparing  the  record  for  the  printer,  indexing  the  same,  supervising  the 

printing   and  distributing   the   copies,   for   each   printed   page   of    the 

record   and   index 25 

Making  a  manuscript  copy  of  the  record,  when  required  by  the  rules, 

for  each  one  hundred  words   (but  nothing  in  addition  for  supervising 

the  printing)    20 

Issuing  a  writ  of  error  and  accompanying  papers,  or  a  mandate  or  other 

process 5  00 

Filing  briefs,   for  each   party  appearing    5  00 

Copy  of  an  opinion  of  the  court,  certified  under  seal,  for  each  printed 

page  (but  not  to  exceed  five  dollars  in  the  whole  for  any  copy)  ....  1  00 
Attorney's  docket  fee  20  00 

Fourth  circuit. — A  petition  for  rehearing  can  be  presented  only  within  thirty 
days  after  judgment  is  entered,  unless  by  special  leave  granted  during  the 
term  the  judgment  was  entered;  and  must  be  printed  and  briefly  and  dis- 
tinctly state  its  grounds,  and  be  supported  by  its  certificate  of  counsel;  and 
will  not  be  granted,  or  permitted  to  be  allowed,  unless  judge  who  concurred 
in  the  judgment  desires  it.  and  the  majority  of  the  court  so  determine.  But 
such  petition  shall  not  operate  to  stay  the  mandate  or  other  process  pro- 
vided for  in  rule  32,  except  by  special  order  of  the  court. 

Fifth  circuit. — Same  as  in  second,  except  that  the  petition  must  be  filed 
within  twenty  days  after  entry  of  judgment. 

MANDATE. 

Sixth  circuit. — In  all  cases  finally  determined  in  this  court,  a  mandate,  or 
other  process  in  the  nature  of  a  procedendo,  shall  be  issued  to  the  court 
below,  for  the  purpose  of  informing  such  court  of  the  proceedings  in  this 
court,  so  that  further  proceedings  may  be  had  in  such  court  as  to  law  and 
justice  may  appertain. 

Such  mandate  shall  not  issue  until  time  has  elapsed  for  filing  a  petition  to 
rehear,  as  defined  by  rule  28 ;  and  no  mandate  or  other  process  of  procedendo 
sliall  issue  when  a  petition  to  rehear  is  pending,  unless  specially  ordered. 

•  v  mandate  shall  be  accompanied  by  a  copy  of  the  opinion  filed  in   t'io 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS  845 

cause  in  which  it  is  issued,  and  the  charge  for  the  same  shall  be  taxed  in  the 
costs  of  the  case. 

NIn  cases  not  requiring  special  form  of  process,  the  mandate  (unless  other- 
wise directed  by  the  court  or  a  judge  thereof)  shall  be  issued  by  the  clerk 
upon  the  expiration  of  time  for  filing  rehearing  petition,  or  upon  the  denial 
of  such  petition,  and  as  well  in  vacation  as  in  term  time. 

COSTS. 

Seventh  circuit. — 1.  When  any  suit  shall  be  dismissed  in  this  court,  except 
for  want  of  jurisdiction,  costs  shall  be  allowed  to  the  defendant  in  error  or 
appellee,  unless  otherwise  agreed  by  the  parties. 

2.  In  every  case  of  a  judgment  or  decree  affirmed  in  this  court  costs  shall 
be  allowed  to  the' defendant  in  error  or  appellee  unless  otherwise  ordered  by 
the  court. 

3.  In  every  case  of  reversal  of  a  judgment  or   decree  in   this  court  costs 
shall  be  allowed  to  the  plaintiff  in  error  or  appellant  unless  otherwise  ordered 
by  the  court.     The  costs  of  the  transcript  of  the  record  from  the  court  below 
shall  be  taxable  in  that  court  as  costs  in  the  case. 

4.  No  costs  shall  be  allowed  in  this  court  for  or  against  the  United  States. 

5.  When  costs  are  allowed  in  this  court,  it  shall  be  the  duty  of  the  clerk 
to  insert  the  amount  thereof  in   the  body  of  the  mandate,  or  other  proper 
process,  sent  to  the  court  below,  directing  to  award  execution  thereupon  and 
to  annex  to  the  same  the  bill  of  items  taxed  in  detail. 

6.  In  all  cases  certified  to  the  Supreme  Court  or  removed  thereto  by  cer- 
tiorari  or  otherwise,  the  fees  of  the  clerk  of  this  court  shall  be  paid  before 
a  transcript  of  the  record  shall  be  transmitted  to  the  Supreme  Court. 

Eighth  circuit. — 1.  A  petition  for  rehearing  may  be  presented  and  filed 
within  sixty  days  after  the  date  of  the  judgment  or  decree,  and  jurisdiction 
to  hear  and  decide  the  question  presented  thereby  is  reserved,  notwithstand- 
ing the  representation  of  the  term  within  the  sixty  days. 

2.  Such  petition  for  hearing  must  be  printed  and  twenty  copies  thereof 
filed  with  the  clerk  and  must  previously  and  distinctly  state  its  grounds  and 
be  supported  by  a  certificate  of  counsel,  and  will  not  be  granted  or  be  per- 
mitted to  be  allowed  unless  the  judge  who  concurred  in  the  judgment  desires 
it,  and  a  majority  of  the  court  so  determines. 

Ninth  circuit. — A  petition  for  rehearing  may  be  presented  within  thirtj 
days  after  judgment,  must  be  printed,  and  briefly  and  distinctly  state  its 
grounds,  and  be  supported  by  certificate  of  counsel  that  in  his  judgment  it  is 
well  founded,  and  that  it  is  not  interposed  for  delay.  Twenty  printed  copies 
must  be  filed  with  the  clerk. 

RULE  30. 
INTEREST. 

First  circuit. — 1.  In  cases  where  a  writ  of  error  is  prosecuted  in  this  court 
and  the  judgment  of  the  inferior  court  is  affirmed,  the  interest  shall  be  calcu- 
lated and  levied,  from  the  date  of  the  judgment  below  until  the  same  is  paid, 


846  APPENDIX 

at  the  same  rate  that  similar  judgments  bear  interest  in  the  courts  of  the 
state  where  such  judgment  was  rendered. 

2.  In  all  cases  where  a  writ  of  error  shall  delay  the  proceedings  on  the 
judgment  of  the  inferior  court,  and  shall  appear  to  have  been  sued  out  merely 
for  delay,  damages  at  a  rate  not  exceeding  ten  per  cent,  in  addition  to  interest, 
shall  be  awarded  upon  the  amount  of  the  judgment. 

3.  The  same  rule  shall  be  applied  to  decrees  for  the  payment  of  money  in 
cases  in  equity,  unless  otherwise  ordered  by  this  court. 

4.  In  cases  in  admiralty,  damages  and  interest  may  be  allowed,  if  specially 
directed  by  the  court. 

Third  circuit. — 1.  In  each  case  finally  determined  in  this  court,  a  mandate 
or  other  proper  process  in  the  nature  of  a  procedendo  shall  be  issued  to  the 
court  below,  for  the  purpose  of  informing  such  court  of  the  proceedings  in 
this  court  so  that  further  proceedings  may  be  had  in  such  court  as  to  law 
and  justice  may  appertain.  Such  mandate  or  other  process  may  issue  at  any 
time  on  the  order  of  the  court,  and,  when  not  otherwise  ordered,  it  shall  issue 
as  of  course  at  the  expiration  of  thirty  days  from  the  date  of  entering  the 
final  judgment  or  final  decree  of  this  court. 

The  following  is  added  to  the  above  in  the  Fourth  circuit: 

5.  In  cases  where  money  is  paid  into  court,  any  party  interested  may  move 
lor   an   order   that  the   clerk   deposit   the   same   under   the   direction   of   the 
court.     On  deposits  so  made,  the  clerk  shall  account  for  such  interest  as  he 
may  have  collected  on  the  fund.    But  without  such  order  he  shall  not  be  re- 
quired to  account  for  interest. 

PHYSICAL  EXHIBITS. 

Sixth  circuit. — 1.  Physical  exhibits,  not  returned  with  the  record  but  which 
are  to  be  used  on  the  hearing,  shall  be  placed  in  the  custody  of  the  marshal 
of  this  court  at  least  ten  days  before  the  case  is  heard  or  submitted. 

2.  All  such  physical  exhibits  shall  be  taken  away  by  the  parties  promptly 
after  the  mandate  issues.  When  this  is  not  done,  it  shall  be  the  duty  of  the 
marshal  to  notify  the  counsel  in  the  case,  by  mail  or  otherwise,  of  the  require- 
ments of  this  rule,  and  if  the  articles  are  not  removed  within  reasonable  time 
after  the  notice  is  given,  he  shall  -destroy  them  or  make  such  other  dispo- 
sition of  them  as  to  him  may  seem  best. 

MANDATE. 

Seventh  circuit. — In  all  cases  finally  determined  in  this  court,  a  mandate 
or  other  proper  process  in  the  nature  of  a  procedendo  shall  be  issued,  on  the 
order  or  by  the  rule  of  this  court,  to  the  court  below,  for  the  purpose  of  in- 
forming such  court  of  the  proceedings  in  this  court,  so  that  further  proceed- 
ings may  be  had  in  such  court  as  to  law  and  justice  may  appertain. 

RULE  31. 

COSTS. 
1.  In  all  cases  where  any  suit  shall  be  dismissed  in  this  court,  except  where 


RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS 

the  dismissal  shall  be  for  want  of  jurisdiction,  costs  shall  be  allowed  to  the 
defendant  in  error  or  appellee,  unless  otherwise  agreed  by  the  parties. 
.  2.  In  all  cases  of  affirmance  of  any  judgment  or  decree  in  this  court,  costs 
shall  be  allowed  to  the  defendant  in  error  or  appellee,  unless  otherwise  ordered 
by  the  court. 

3.  In  cases  of  reversal  of  any  judgment  or  decree  in  this  court,  costs  shall 
be  allowed  to  the  plaintiff  in  error  or  appellant,  unless  otherwise  ordered  by 
the  court. 

4.  The  cost  of  the  transcript  of  the  record  from  the  court  below  shall  be 
taxable  in  that  court  as  costs  in  the  case. 

5.  Neither  of  the  foregoing  sections  shall  apply  to  cases  where  the  United 
States  are  a  party;  but  in  such  cases  no  costs  shall  be  allowed  in  this  court 
for  or  against  the  United  States. 

6.  When  costs  are  allowed  in  this  court,  it  shall  be  the  duty  of  the  clerk 
to  insert   the  amount  thereof  in  the  body  of  the  mandate,  or  other  proper 
process,  sent  to  the  court  below,  and  annex  to  the  same  the  bill  of  items  taxed 
in  detail. 

7.  In  all  cases  certified  to  the  Supreme  Court  or  removed  thereto  by  cer- 
tiorari  or  otherwise,  the  fees  of  the  clerk  of  this  court  shall  be  paid  before  a 
transcript  of  the  record  shall  be  transmitted  to  the  Supreme  Court. 

In  the  Second  circuit,  §§  3  and  4  as  given  above  are  combined  in  §  3,  and 
the  following  is  added  to  that  section:  "And  the  clerk  of  the  court  below 
shall  send  to  the  clerk  of  this  court  with  the  transcript  of  record  a  certifi- 
cate of  the  cost  of  such  transcript." 

CUSTODY  OF  PRISONERS  ON  HABEAS  CORPUS. 

Third  circuit. — 1.  Pending  an  appeal  from  the  decision  of  any  court  or 
judge  declining  to  grant  the  writ  of  habeas  corpus,  the  custody  of  the  pris 
oner  shall  not  be  disturbed. 

2.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge  discharg- 
ing the  writ  after  it  has  been  issued,  the  prisoner  shall  be  remanded  to  the 
custody  from  which  he  was  taken  by  the  writ,  or  shall,  for  good  cause  shown, 
be  detained  in  custody  of  the  court  or  judge,  or  be  enlarged  upon  recogni- 
zance, as  hereinafter  provided. 

3.  Pending  an  appeal  from  a  final  decision  of  any  court  or  judge  discharg- 
ing the  prisoner,  he  shall  be  enlarged  upon  recognizance,  with  surety,  for  ap- 
pearance to  answer  the  judgment  of  the  appellate  court,  except  where,   for 
special  reasons,  sureties  ought  not  to  be  required. 

In  the  Fourth  circuit,  §  4  is  included  in  §  3,  as  follows,  and  the  following 
section  is  added  to  the  above:  Part  of  §  3:  "The  cost  of  the  transcript  of 
the  record  and  proofs  from  the  court  below,  and  the  expense  of  printing  the 
same,  when  printed  below,  shall  be  taxable  in  that  court  as  costs  in  the  case. 
The  expense  of  printing,  however,  shall  be  taxed  at  actual  cost  (to  be  shown 
by  the  affidavit  of  the  printer),  but  in  no  event  to  exceed  twenty  cents  per 
folio  of  one  hundred  words." 

Added   section: 

7.  The  following  table  of  fees  and  costs,  established  under  the  act  of  Con- 
gress of  February  19,  1897  (29  Stat.  536,  c.  263),  shall  remain  and  continue 
in  effect  with  the  promulgation  of  these  rules: 


848  APl'EXDIX 


Docketing  a  case   and   filing   the   record    $  5  00 

Entering    an    appearance    25 

Transferring  a  case  to  the  printed  calendar 1  00 

Entering   a  continuance    25 

Filing  a  motion,  order  or  other  paper   25 

Entering  any  rule,  or  making  or  copying  any  record  or  other  paper, 

for  each  one  hundred  words 20 

Entering  a  judgment  or  decree    1  00 

Every  search  of  the  records  of  the  court  and  certifying  the  same   ....      1  00 

Affixing  a  certificate  and  a  seal  to  any  paper   1  00 

Receiving,  keeping  and  paying  money,  in  pursuance  of  any  statute  or  or- 
der of  the  court,  one  per  cent  on  the  amount  so  received,  kept  and 
paid. 

Preparing  the  record  for   the  printer,   indexing  same,   supervising  the 
printing  and  distributing  the  copies,   for  each   printed   page  of   the 

record  and  index   25 

Making  a  manuscript  copy  of  the  record,  when  required  by  the  rules, 
for  each   one  hundred  words    (but  nothing   in  addition   for   super- 
vising the  printing) 20 

Issuing  a   writ  of   error  and   accompanying  papers,  or   a   mandate   or 

other  process 5  00 

Filing  briefs,  for  each  party  appearing   5  00 

Copy  of  an  opinion  of  the  court,  certified  under  seal,  for  each  printed 

page   (but  not  to  exceed  five  dollars  in  the  whole  for  any  copy)    . .      1  00 

Attorney's  docket  fee    .,1.^,^;., 20  00 

In  the  Fifth  circuit,  §  4  is  included  in  §  3. 

LIBRARY. 

Sixth  circuit. — All  fees  collected  by  the  clerk,  which  are  not  by  law  re- 
quired to  be  deposited  by  him  in  the  Treasury  of  the  United  States,  shall 
constitute  a  fund  to  be  expended  by  the  clerk  under  the  direction  of  the  pre- 
siding judge,  in  the  purchasing,  repairing,  and  rebinding  of  law  books  for  the 
library  of  the  court;  and  it  shall  be  his  duty  to  render  to  the  court,  for  its 
examination  and  approval,  an  annual  account  of  such  fees  received  by  him 
and  of  his  disbursements  thereof. 

CUSTODY  OF  PRISONERS  ON  HABEAS  CORPUS. 

Seventh  circuit. — 1.  Pending  an  appeal  from  the  final  decision  of  any  court 
or  judge  declining  to  grant  the  writ  of  habeas  corpus,  the  custody  of  the 
prisoner  shall  not  be  disturbed. 

2.  Pending  an  appeal   from  the   final  decision   of  any  court  or  judge   dis- 
charging the  writ  after  it  has  been  issued,  the  prisoner  shall  be  remanded  to 
the  custody  from  which  he  was  taken  by  the  writ,  or  shall,  for  good  cause 
shown,  be  detained  in  the  custody  of  the  court  or  judge,  or  be  enlarged  upon 
recognizance,  as  hereinafter  provided. 

3.  Pending  an   appeal   from   the   final  decision  of  any  court  or  judge  dis- 


RULES  OF  THE  CIRCUIT  COURTS  OF  APPEALS        849 

charging  the  prisoner,  he  shall  be  enlarged  upon  recognizance,  with  surety 
for  appearance  to  answer  the  judgment  of  the  appellate  court,  except  where, 
for  special  reasons,  sureties  ought  not  to  be  required. 

In  the  Eighth  circuit,  §  4  is  included  in  §  3  as  follows:  Where  the  record 
has  been  printed  in  this  court  under  the  provisions  of  §§  1  and  2  of  rule 
23,  the  cost  of  printing  thirty  copies  of  the  transcript  of  record  from  the 
court  below  shall  be  taxed  as  costs  in  the  case,  unless  otherwise  ordered  by 
this  court,  but  no  allowance  shall  be  made  for  the  amount  paid  to  the  clerk 
of  the  court  below  for  the  written  or  typewritten  transcript  of  the  record. 
Where  the  record  has  been  printed  in  the  court  below  and  a  copy  of  such 
printed  record  certified  to  this  court  the  cost  of  printing  twenty-five  copies 
of  such  record  or  portion  thereof  shall  be  taxable  as  costs  in  the  case  in  the 
court  below,  unless  otherwise  ordered  by  this  court. 

In  the  Ninth  circuit  §  4  is  included  in  §  3,  and  the  following  section  is  added 
to  the  above: 

7.  Upon  the  clerk's  producing  satisfactory  evidence,  by  affidavit  or  the 
acknowledgment  of  the  parties  or  their  sureties,  of  having  served  a  copy  of 
any  bill  of  fees  due  by  them,  respectively,  in  this  court,  on  such  parties  or 
their  sureties,  an  attachment  shall  issue  against  such  parties  or  sureties  re- 
spectively to  compel  payment  of  said  fees. 

RULE  32. 
MANDATE. 

In  every  case  finally  determined,  a  mandate,  or  other  proper  process  in  the 
nature  of  a  procedendo,  shall  be  issued  to  the  court  below,  for  the  purpose  of 
informing  that  court  of  the  proceedings  in  this  court,  so  that  further  pro- 
i-eodings  may  be  had  in  the  court  below  as  to  law  and  justice  may  appertain. 
Such  mandate,  or  other  process,  may  issue  at  any  time  on  the  order  of  the 
court;  but,  unless  otherwise  ordered,  it  shall  issue  as  of  course  after  two 
calendar  months  from  the  entry  of  judgment,  unless  a  petition  for  rehear- 
ing has  been  filed  and  remains  undisposed  of. 

The  part  beginning,  "such  mandate,"  is  omitted  in  the  Second  circuit. 

MODELS,  DIAGRAMS  AND  EXHIBITS  OF  MATERIAL. 

Tnird  circuit. — 1.  Models,  diagrams  and  exhibits  of  material  forming  part 
of  the  evidence  taken  in  the  court  below,  in  any  case  pending  in  this  court, 
on  writ  of  error  or  appeal,  shall  be  placed  in  the  custody  of  the  clerk  of  this 
court  at  least  ten  days  before  the  case  is  heard  or  submitted. 

2.  All  models,  diagrams  and  exhibits  of  material  placed  in  the  custody  of 
the  clerk  for  the  inspection  of  the  court  on  the  hearing  of  a  case,  must  be 
taken  away  by  the  parties  within  one  month  after  the  case  is  decided.  When 
this  is  not  done,  it  shall  be  the  duty  of  the  clerk  to  notify  the  counsel  in  the 
case,  by  mail  or  otherwise,  of  the  requirements  of  this  rule,  and,  if  the  articles 
are  not  removed  within  a  reasonable  time  after  the  notice  is  given,  he  shall 
Montg.-  -54. 


850 

destroy  them,  or  make  such  other  disposition  of  them  as  to  him  may  seem 
best. 

This  concludes  the  rules  in  the  third  circuit. 

In  the  Fourth  circuit  the  words,  "two  calendar  months,"  are  changed  to 
''thirty  days." 

Fifth  circuit. — Mandates  shall  issue  at  any  time  after  twenty -one  days  from 
the  date  of  the  decision,  unless  an  application  for  a  rehearing  has  been  grant- 
ed or  is  pending.  A  copy  of  the  opinion  of  this  court  shall  accompany  the 
mandate  when  a  new  trial  or  further  proceedings  are  to  be  had  in  the  lower 
court,  and  the  charge  for  such  copy  shall  be  taxed  in  the  costs  of  the  case. 
Provided  that  in  all  cases  entitled  to  precedence  in  this  court  under  §  7  of 
the  act  approved  March  '6,  1891,  and  amendments  thereto,  the  'mandate  or 
other  proper  process  shall  issue  after  the  expiration  of  seven  days  from  the 
date  of  the  decision,  unless  otherwise  ordered  by  the  court  or  one  of  the 
judges. 

CUSTODY  OF  PRISONERS  ON  HABEAS  CORPUS. 

Sixth  circuit. — 1.  Pending  an  appeal  from  the  final  decision  of  any  court 
or  judge  declining  to  grant  the  writ  of  habeas  corpus,  the  custody  of  the 
prisoner  shall  not  be  disturbed. 

2.  Pending  an  appeal   from   the  final  decision  of  any  court  or  judge  dis- 
charging the  writ  after  it  has  been  issued,  the  prisoner  shall  be  remanded  to 
the  custody  from  which  he  was  taken  by  the  writ,  or  shall,  for  good  cans*- 
shown,   be   detained   in   the   custody   of  the   court   or   judge,   or   be   enlarged 
upon  recognizance,  as  hereinafter  provided. 

3.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge  discharg- 
ing the   prisoner,   he   shall   be   enlarged   upon   recognizance,   with   surety,   for 
appearance  to  answer  the  judgment  of  the  appellate  court,  except  where,  for 
special  reasons,  sureties  ought  not  to  be  required. 

MODELS,  DIAGRAMS  AND  EXHIBITS. 

Seventh  circuit. — Models,  diagrams  and  exhibits  of  material  forming  part 
of  the  evidence  taken  in  the  court  below,  and  in  any  case  pending  in  this 
court  on  writ  of  error  or  appeal,  shall  be  placed  in  the  custody  of  the  mar- 
shal for  the  use  of  this  court  at  least  ten  days  before  the  case  is  heard  or 
submitted;  and  shall  be  taken  away  by  the  parties  within  one  month  after 
the  case  is  decided.  When  this  is  not  done,  it  shall  be  the  duty  of  the  mar- 
shal to  notify  the  counsel  in  the  case,  by  mail  or  otherwise,  of  the  requrie- 
ments  of  this  rule,  and,  if  the  articles  are  not  removed  within  a  reasonable 
time  after  the  notice  is  given,  he  shall  destroy  or  make  such  other  dispo- 
sition of  them  as  to  him  may  seem  best. 

Eighth  circuit. — Same  as  in  second  circuit.        '•  *""•' 

Ninth  circuit. — Beginning  after  the  word  "appertain,"  the  rule  concludes 
as  follows  in  this  circuit:  Such  mandate,  if  not  stayed  by  the  order  of  the 
court,  shall  be  issued  on  the  expiration  of  thirty  days  from  the  date  of  such 
final  determination,  unless  within  said  time  a  petition  for  rehearing  be  filed, 


KULES  OF  THE  CIRCUIT  COURTS  OF  APPEALS       851 

in  which  caso  the  mandate  shall  be  stayed  until  five  days  after  the  determina- 
tion of  such  petition. 

RULE  33. 
CUSTODY  OF  PRISONERS  ON  HABEAS  CORPUS. 

1.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge  declining 
to  grant  the  writ  of  habeas  corpus,  the  custody  of  the  prisoner  shall  not  be 
disturbed. 

2.  Pending  an  appeal  from  the   final  decision  of  any  court  or  judge  dis- 
charging the  writ  after  it  has  been  issued,  the  prisoner  shall  be  remanded  to 
the  custody  from  which  he  was  taken  by  the  writ,  or  shall,  for  good  cause 
shown,  be  detained  in  custody  of  the  court  or  judge,  or  be  enlarged  upon 
recognizance,  as  hereinafter  provided. 

3.  Pending  an  appeal   from  the   final   decision  of  any  court  or  judge  dis- 
charging the  prisoner,  he  shall  be   enlarged  upon  recognizance,  with   surety, 
for  appearance  to  answer  the  judgment  of  the  appellate  court,  except  where, 
for  special  reasons,  sureties  ought  not  to  be  required. 

In  the  Third  circuit  this  is  rule  31. 

MANDAMUS  AND  PROHIBITION. 

Sixth  circuit. — 1.  The  alternative  writ  of  mandamus  will  not  be  issued,  but 
on  proper  showing  an  order  to  show  cause  will  be  made. 

2.  A  party  desiring  a  writ  of  mandamus  or  prohibition  shall  file  his  pe- 
tition therefor  and  showing  in  support  thereof  together  with  such  brief  or 
memorandum  as  he  may  desire.    These  need  not  be,  at  this  time,  printed,  and 
notice  need  not  be  given.     He  shall  deposit  ten   ($10)   dollars  with  the  clerk 
on  account  of  fees.     The  clerk  shall  enter  the  application  on  his  docket,  and 
informally  submit  the  papers  to  the  court. 

3.  If  the  court  is  of  the  opinion  that  the  application  justifies  a  hearing,  an 
order  to  show  cause  will  be  entered  returnable  as  promptly  as  the  situation 
permits;   if  of  contrary  opinion,  an  order  of  denial   will  be  made,  and  the 
clerk  shall  notify  the  applicant  accordingly,  enter  the  case  on  his  docket  as 
closed  and  return  to  the  applicant  the  surplus,  if  any,  of  the  fee  deposited. 

If  such  order  to  show  cause  is  made,  the  clerk  shall  deliver  a  certified  copy, 
to  the  applicant  who  shall  cause  the  same  to  be  served  within  the  time  and 
in  the  manner  fixed  in  the  order.  An  answer  or  return  shall  be  filed  on  or  be- 
fore the  return  day  as  specified  in  the  order  or  as  extended  by  a  judge  of 
this  court.  Unless  within  ten  days  after  the  filing  of  such  answer  or  return 
the  appellant  makes  special  motion  to  award  and  frame  issue,  or,  if  an  issue, 
then  upon  the  return  of  the  proceedings  thereon,  and  unless  the  court  orders 
a  hearing  as  upon  motion,  the  matter  shall  stand  for  hearing  upon  the  calen- 
dar and  the  clerk  shall  receive  the  remaining  five  dollars  of  the  usual  fee  de- 
posit, estimate  and  require  a  deposit  for  printing  and  print  the  record,  briefs 
shall  be  filed,  and  the  matter  in  all  respects  proceed  like  other  docketed 
cauaes. 


APPENDIX 

LAW  LIBRARY. 

Seventh  circuit. — 1.  The  library  of  the  court  shall  be  under  general  super- 
\  ision  and  custody  of  the  clerk  of  the  court. 

2.  No  bonus  shall  be  removed  from  the  library  except  upon  a  written  or- 
der of  a  judge  of  this  court,  except,  that  during  the  sessions  of  the  court  any 
lawyer  who  has  a  case  on  the  docket,  upon  written  application  to  the  clerk 
and  upon  the  clerk's  written  order,  may  take  from  the  library  not  exceeding 
three  volumes  at  a  time,  being  responsible  for  the  return  thereof  within 
twenty-four  hours  and  in  default  of  return  shall  pay  to  the  clerk  for  the 
library  fund  twice  the  value  thereof,  but  if  returned  in  good  condition  one 
dollar  for  each  day's  detention  beyond  the  limited  time. 

RULE  34. 
MODELS,  DIAGRAMS  AND  EXHIBITS  OF  MATERIAL. 

1.  Models,  diagrams  and  exhibits  of  material,  forming  a  part  of  the  evi- 
dence taken  in  the  court  below,  in  any  case  pending  in  this  court,  on  writ 
of   error  or   appeal,   shall  be   placed  in   the   custody   of  the   marshal   of   this 
court  at  least  ten  days  before  the  case  is  heard  or  submitted. 

2.  All  models,  diagrams,  and   exhibits  of  material,   placed  in  the  custody 
of  the  marshal  for  the  inspection  of  the  court  on  the  hearing  of  a  case,  must 
be  taken  away  by  the  parties  within   one  month  after  the   case  is  decided. 
Wiien  this  is  not  done   it   shall  be  the   duty   of   the  marshal  to  notify   the 
counsel  in  the  case,  by  mail  or  otherwise,  of  the  requirements  of  this  rule; 
and   if    the   articles   are    not    removed    within    a    reasonable   time    after    the 
notice  is  given,  he  shall  destroy  them,  or  make  such  other  disposition  of  them 
as  to  him  may  seem  best. 

In  the  Second  circuit,  §  2  is  as  follows,  and  §  3  is  added: 

2.  Three  copies  must  be  furnished  for  the  use  of  the  court  of  any  maps, 
•  •harts,  plans,  diagrams,  or  other  papers  or  documents  which  it  is  intended 
to  refer  to  on  the  argument,  and  which  are  not  contained  in  the  transcript 
of  record  as  certified  from  the  court  below. 

3.  All  exhibits  of  material  in  customs  cases  must  be  filed  with  the  clerk 
iit   the   time   of   filing   the   transcript   of   record,   and    such    exhibits   will   be 
returned  to  the  clerk  of  the  district  court  at  the  expiration   of  sixty  days 
trom   the  decision   of  the  case   by   this   court.     All   other   models,   diagrams, 
and  exhibits  of  material  placed  in  the  custody  of  the  clerk  for  the  inspection 
of  the  court  on  the  hearing  of  a  case  must  be  taken  away  by  the  parties 
within   one  month   after   the  case   is   decided.     It   shall   be   the   duty   of  the 
clerk   to   notify   the   counsel  in   the   case,   by   mail   or   otherwise,   of   the   re- 
i]uirements   of   this   rule:    and   if   the   articles    are   not   removed   within   the 
time  above  specified,  he  shall  destroy  them,  or  make  such  other  disposition 
of  them  as  to  him  may  seem  best. 

PETITION  TO  REVISE  IN  BANKRUPTCY. 
Sixth  circuit. — 1.  A  petition  to  revise  shall  contain,  first,  a  concise  history 


RULES   OF    THE    CIRCUIT    COURTS    OF   APPEALS  853 

of  so  much  of  the  proceedings  before  the  referee  and  the  district  court  as 
may  be  necessary  to  make  plain  the  errors  assigned;  second,  an  assign- 
^ment  of  the  ^errors  in  respect  to  which  revision  in  matter  of  law  is  sought; 
third,  as  exhibits  to  the  petition,  copies  certified  by  the  clerk  of  the  district 
court  of  each  paper  or  proceeding  relied  upon  to  support  the  errors  as- 
signed; and  fourth,  any  findings  of  fact  that  may  be  filed  pursuant  to 
•  •la use  2  hereof;  but  a  petition  to  revise  shall  not  be  filed  so  late  as  to 
delay  the  hearing  of  any  appeal  that  may  have  been  taken  in  the  same 
matter;  and  it  may  incorporate,  by  reference  and  without  repeating,  any 
parts  of  the  return  in  such  appeal. 

2.  Whenever  the  district  court  has  made  any  order  in  a  proceeding  in 
bankruptcy  which  involves  or  depends  upon  facts  made  to  appear  otherwise 
than  solely  by  the  pleadings  in  the  matter,  and  the  district  judge  is  notified 
in  writing  by  any  party  that  he  intends  to  file  a  petition  to  revise  and 
deems  finding  of  fact  to  be  necessary,  it  shall  be  the  duty  of  the  district 
judge,  as  soon  as  possible,  to  make  and  file  with  the  clerk  of  the  district 
court  his  findings  of  fact  in  such  matter. 

:>.  At  or  before  the  filing  of  such  petition,  a  complete  copy  thereof  shall 
be  served  upon  counsel  for  each  separate,  adverse  interest,  and  the  petition, 
when  offered  for  filing,  shall  contain  due  proof  or  acknowledgment  of  such 
service. 

4.  Unless  within  ten  days  after  the  filing  of  such  petition  an  adverse 
party  in  interest  shall  file  an  answer  denying  the  accuracy  of  the  exhibits 
to  the  petition,  or  setting  out  as  exhibits  certified  copies  of  additional 
papers  or  proceedings  which  are  thought  to  bear  upon  the  errors  assigned, 
the  accuracy  and  completeness  of  the  exhibits  shall  be  presumed  to  be  ad- 
mitted. Such  answer  may  also  incorporate  by  reference  any  orders  or 
records  in  any  co-pending  appeal. 

.">.  Upon  the  coming  in  of  such  answers  or  the  expiration  of  such  ten 
<luys,  such  petition  shall  stand  for  hearing,  and  the  clerk  shall  estimate 
and  require  deposit  for  and  cause  the  record  to  be  printed,  and  briefs  shall 
i>e  liled,  all  as  in  other  causes. 

This  concludes  the  rules  in  the  Sixth  circuit. 

WRITS  OF  ERROR  IN  CRIMINAL  CASES. 

Seventh  circuit. — Writs  of  error  from  this  court  to  review  criminal  cases 
tried  in  any  district  court  of  the  United  States  within  this  circuit,  may  be 
allowed  in  term  time  or  in  vacation  by  the  circuit  justice  assigned  to  this 
circuit,  or  by  any  of  the  circuit  judges,  within  the  circuit  or  by  any  district 
judge  within  his  district,  or  the  proper  security  be  taken,  and  the  citation 
signed  by  him,  and  he  may  also  grant  a  supersedeas  and  stay  of  execution 
of  proceedings,  pending  the  determination  of  each  writ  of  error. 

2.  Where  such  writ  of  error  is  allowed  in  the  criminal  cases  aforesaid, 
the  district  court  before  which  the  accused  was  tried  or  the  district  judge 
of  the  district  wherein  he  was  tried,  within  his  district,  or  the  circuit 
justice  assigned  to  this  circuit,  or  any  of  the  circuit  judges  within  the 
circuit,  shall  have  the  power,  after  the  citation  has  been  duly  served,  to 
admit  the  accused  to  bail  and  to  fix  the  amount  of  such  bail. 

This  ronehide*  the  rules  in  the  Seventh  circuit. 


854  APPENDIX 

RULE   35. 
ERROR  IN  CRIMINAL  CASES. 

On  or  after  the  allowance  of  a  writ  of  error  in  a  criminal  case,  cognizable 
by  this  court,  the  justice  or  judge  who  allowed  the  writ,  or  the  court  which 
entered  the  judgment,  or  any  judge  thereof,  shall  have  power  to  admit  to 
bail  the  plaintiff  in  error,  according  to  the  rules  of  law  applicable  to  his 
case. 

ALLOWANCE  OF  APPEALS  AND  WRIT  OF  ERROR— BAIL. 

Second  circuit. — 1.  An  appeal  or  writ  of  error  from  a  district  court  to  this 
court  in  the  cases  provided  for  in  §§  6  and  7  of  the  act  entitled  "An  Act 
to  Establish  Circuit  Courts  of  Appeals  and  to  Define  and  Regulate  in  Cer- 
tain Cases  the  Jurisdiction  of  the  Courts  of  the  United  State*,  and  for 
Other  Purposes,"  approved  March  3,  1891,  and  acts  to  amend  said  act 
approved  February  18,  1895,  and  January  20,  1897,  may  be  allowed  in  term 
time  or  vacation  by  the  circuit  justice  or  by  any  circuit  judge  within  the 
circuit  or  by  any  district  judge  within  his  district,  and  the  proper  security 
be  taken  and  the  citation  be  signed  by  him,  and  he  may  also  grant  a 
supersedeas  and  stay  of  execution  or  of  proceedings,  pending  such  writ  of 
error  or  appeal. 

2.  Where  such  writ  of  error  from  this  court  is  allowed  in  the  case  of  a 
conviction  of  an  infamous  crime  or  in  any  other  criminal  case  in  which  it 
will  lie,  the  district  court  or  the  judge  thereof,  or  any  circuit  judge  of  the 
circuit  or  the  circuit  justice,  shall  have  power,  after  the  citation  is  served, 
to  admit  the  accused  to  bail  in  such  amount  as  may  be  fixed. 

SATURDAY  CONFERENCE  DAY. 

Fourth  circuit. — Clerk  in  making  his  docket  shall  not  set  down  for  argu- 
ment any  cause  for  any  Saturday  of  the  term  for  which  such  docket  is 
intended,  and  this  court  will  meet  on  said  days  for  consultation  only. 

ORDER  IN  RELATION  TO  ASSIGNMENT  OF  CASES  FOR  HEARING. 

Fifth  circuit. — Unless  otherwise  ordered  by  the  senior  circuit  judge,  thirty 
days  prior  to  the  opening  of  a  regular  session  of  this  court,  the  clerk  is 
directed  to  assign  cases  for  hearing  as  follows: 

At  Atlanta,  Georgia,  four  cases  per  day  for  the  first  three  days  of  each 
week ; 

At  Montgomery,  Alabama,  four  cases  for  the  first  three  days  of  each 
week ; 

At  Fort  Worth,  Texas,  four  cases  per  day  for  the  first  three  days  of  each 
week ; 

At  New  Orleans,  Louisiana,  two  cases  per  daj^  for  the  first  three  days 
of  each  week. 

The   above    assignments    shall   be   made    in    accordance   with    existing    law 


BULBS  OF  THE  CIRCUIT  COURTS  OF  APPEALS       855 

regulating  the  return  of  appeal,  writs  of  error  and  other  appellant  pro- 
ceedings in  the  fifth  judicial  circuit:  Provided  that  cases  entitled  by  law  to 
preference  in  hearing  and  bankruptcy  cases  shall  be  assigned,  and  cases, 
whether  preference  or  not,  upon  stipulation  of  the  parties  filed  with  the 
clerk  and  approved  by  the  court,  be  assigned  for  hearing  at  any  other 
place  or  session  of  this  court  designated  in  such  stipulation. 

Except  as  hereinafter  provided,  the  assignment  of  cases  at  New  Orleans, 
Louisiana,  shall  be  grouped  by  states,  so  as  to  permit  the  hearing  of  cases 
from  one  state  before  the  cases  from  the  next  state  in  order  shall  be 
called. 

WRITS  OF  ERROR  IN  CRIMINAL  CASES. 

Eighth  circuit. — 1.  Writs  of  error  to  review  criminal  cases  tried  in  any 
district  court  of  the  United  States  within  this  circuit,  which  may  be  re- 
viewed under  the  provisions  of  The  Judicial  Code,  approved  March  3,  1911, 
may  be  allowed  in  term  time  or  in  vacation  by  the  circuit  justice  assigned 
to  this  circuit,  or  by  either  of  the  circuit  judges  within  the  circuit,  or  by 
any  district  judge  within  his  district,  and  the  proper  security  be  taken, 
and  the  citation  signed  by  him,  and  he  may  also  grant  a  supersedeas  and 
stay  of  execution  or  proceedings,  pending  the  determination  of  such  writ 
of  error. 

2.  Where  such  writ  of  error  is  allowed  in  the  criminal  cases  aforesaid, 
the  district  court  before  which  the  accused  was  tried,  or  the  district  judge 
of  the  district  wherein  he  was  tried,  within  the  district,  or  the  circuit 
justice  assigned  to  the  circuit,  or  either  of  the  circuit  judges  within  the 
circuit,  shall  have  the  power,  after  the  citation  has  been  duly  served,  to 
admit  the  accused  to  bail  in  such  amount  as  may  be  fixed,  such  bail  bond 
to  be,  as  near  as  may  be,  in  the  form  prescribed  in  the  Appendix  to  these 
rules. 

ASSIGNMENT  OF  CAUSES  FOR  HEARING. 

Ninth  circuit. — 1.  Thirty  days  prior  to  the  opening  of  any  calendar  session 
of  a  court,  the  clerk  is  directed  to  assign  causes  for  hearing  at  the  rate  of  one 
case  for  the  first  day  of  each  term  or  session,  and  two  cases  per  day  for 
each  of  the  ensuing  court  days  of  such  term  or  session.  The  causes 
shall  be  grouped  by  statutes,  and  assignments  made,  so  as  to  permit 
the  hearing  of  causes  from  one  state  before  the  causes  from  the  next  state 
in  order  shall  be  called ;  causes  from  the  northern  district  of  California 
shall  be  assigned  for  hearing  last.  Any  causes  entitled  by  law  to  preference 
in  hearing  shall  be  first  assigned  and  take  precedence  over  other  causes  from 
the  same  state. 

2.  A  stipulation  to  continue  a  case  to  the  foot  of  the  calendar  or  in  any 
way   change  the  day   assigned   for  hearing,  will  not   be   recognized   as  bind- 
ing upon  the  court,   and  no  such   change   will  be  made  except  by  order   of 
the  court  for  reason  shown. 

3.  Ten    days    before    each    calendar    session    of    the    court    the    clerk    shall 
prepare  and  cause  to  be  printed  a  calendar  of  the  causes  assigned  for  the 
approaching  session. 


856  APPENDIX 

RULE  36. 
PETITION  IN  BANKRUPTCY  CASES. 

First  circuit. — 1.  On  the  filing  of  a  petition  for  the  exercise  of  the  power 
of  superintendence  and  revision  vested  in  this  court  by  the  act  to  estab- 
lish a  uniform  system  of  bankruptcy  throughout  the  United  States,  ap- 
proved July  1,  1898,  or  any  accounts  in  addition  thereto  or  amendatory 
thereon,  the  clerk  shall  issue,  as  of  course,  an  order  to  show  cause,  return- 
able two  weeks  from  the  date  thereof,  which  shall  be  served  by  copy  on 
each  of  the  adverse  parties  named  in  the  petition  as  a  person  against 
whom  relief  is  desired,  or  his  solicitor  in  the  proceeding  in  the  district 
court,  at  least  one  week  before  the  return  day  of  the  order,  which  service 
shall  be  made  by  the  marshal  or  his  deputy  in  the  district  where  the 
parties  or  solicitor  served  resides. 

This  concludes  the  rules  in  the  First  circuit. 

SECURITY  FOR  CLERK'S  FEES— TAXING  COSTS. 

Second  circuit. — 1.  In  all  cases  the  plaintiff  in  error  or  appellant  on  docket- 
ing a  case  and  filing  a  record,  shall  enter  into  an  undertaking  with  the 
clerk,  for  the  payment  of  his  fees  or  otherwise  satisfy  him  in  that  behalf. 

2.  At  the  expiration  of  ten  days  after  a  case  has  been  decided,  the  order 
or  decree  thereon  will  be  entered  by  the  court,  and  the  clerk  will  there- 
upon prepare  and  tax  the  bill  of  costs  and  issue  the  mandate.  Within  said 
ten  days  the  parties  may  file  with  the  clerk  their  proposed  orders  or  de- 
crees and  bills  of  costs  with  proof  of  service  of  the  same  upon  the  opposing 
attorneys. 

BANKRUPTCY. 

Fourth  circuit. — 1.  Upon  the  filing  of  the  petition  for  review  as  provided 
for  in  §  -24  (b)  of  the  act  to  establish  a  uniform  system  of  bankruptcy 
throughout  the  United  States,  approved  July  1st,  1898,  the  clerk  of  this 
court  shall  docket  the  cause,  and  shall  forthwith  serve  a  certified  copy 
of  petition  upon  the  respondent  or  respondents,  or  their  solicitors,  through 
the  mail  or  otherwise,  together  with  a  notice  to  the  respondent  or  respond- 
ents, to  answer,  demur,  or  move  to  dismiss  the  said  petition  within  the 
fifteen  days  from  the  date  of  such  notice. 

2.  The  petitioner   shall   cause  a   certified   printed  transcript  of  the  record 
and  proceedings  of  the   bankruptcy  court  of  the  matter  to  be   reviewed,   to 
be  filed  in  the  clerk's  office  of  this  court  within  forty  days  from  the  date  of 
the  filing  of  his  petition  for  review. 

3.  By  consent  of  all  parties  to  the  cause,  by  stipulation   in  writing  filed 
with   the  clerk  of  this  court,  the  petitioner  may  cause  a  transcript  of  the 
record  and  proceedings  of  the  bankruptcy  court  of  the  matter  to  be  reviewed 
to  be  filed  in  the  clerk's  office  of  this  court  in   lieu   of  a  certified   printed 
transcript  as  above  mentioned,   and  thereupon  the  clerk  of  this  court  shall 
cause  £he   record  to  be   printed   as  provided   in   the  23d   rule   of   this  court, 
and  furnish  counsel  on  both  sides  with  three  copies  each. 


RULES  OF  THE  CIRCUIT  COURTS  OF  APPEALS       857 

4.  And   such   causes   shall  stand  for  hearing   in   their   regular  order.     But 
either  side  may,  upon  ten  days'  notice  given  to  the  opposing  counsel,  have 
-the  cause  heard,  either  at  term  time,  or  in  vacation,  or  in  chambers/  upon 
the  briefs,  unless  at  its  own  suggestion,  or  for  good  cause  shown,  the  court 
shall  order  oral  argument. 

5.  That  all  causes  coming  up  by  appeal  as  provided  in  §  25  of  said  bank- 
ruptcy act  shall  stand  for  hearing  in  this  court,  either  in  term  time  or  in 
vacation,  and  may  be  called  up  by   either   party   upon  ten   days'  notice,  as 
provided  in  §  4  of  this  rule. 

6.  All  rules  of  this  court    (except  as  herein  modified)    shall  apply  to  the 
proceedings  in  bankruptcy  to  which  this  rule  relates. 

7.  Nothing  herein  shall  prevent  the  court,  from  time  to  time,  from  making, 
for  special  cause,  orders  diminishing  or  enlarging  the  times  named  herein, 
or   any   other   order   suitable   to   expedite   the   proceeding   or   to   prevent   in- 
justice. 

ASSIGNMENT  OF  JUDGES. 

Fifth  circuit. — It  is  ordered  that  whenever  a  full  bench  of  three  judges 
shall  not  be  made  up  by  the  attendance  of  the  associate  justice  of  the 
Supreme  Court  assigned  to  the  circuit,  and  of  the  circuit  judges,  so  many 
of  the  district  judges,  in  the  order  of  seniority  of  their  respective  com- 
missions and  qualified  to  sit,  as  may  be  necessary  to  make  up  a  full  court 
of  three  judges,  are  hereby  designated  and  assigned  to  sit  in  this  court: 
Proridrd,  however,  that  the  court  may  at  any  time,  by  particular  assign- 
ment, designate  any  district  judge  to  sit  as  aforesaid. 

PETITIONS  TO  REVISE. 

Eighth  circuit. — A  petition  to  revise,  under  the  provisions  of  §  24  (b)  of  the 
bankruptcy  law,  approved  July  1st,  1898,  shall  be  filed  and  designated  as 

an   original   action   in   this  court,  and   be  entitled,   " ,   Petitioner,   v. 

,   Respondent,"   and   shall   specifically   designate   the   respondent 

or  respondents  upon  whom  the  petitioner  desires  notice  to  be  served,  and 
a  sufficient  number  of  copies  of  such  petition  shall  be  furnished  the  clerk 
at  the  time  of  filing  so  that  a  copy  may  be  served  upon  each  of  the  re- 
spondents. 

TERMS  AND  SESSIONS  OF  THE  COURT. 

Ninth  circuit. — 1.  One  term  of  this  court  shall  be  held  annually  on  the  first 
Monday  of  October  and  adjourned  sessions  on  the  first  Monday  of  each 
month  in  the  year.  All  sessions  shall  be  held  at  San  Francisco,  unless 
otherwise  especially  ordered  by  the  court. 

2.  The  October,  February,  and  May  sessions  shall  be  known  as  calendar 
sessions,  and  shall  be  sessions  for  the  trial  of  all  causes  that  shall  have 
been  placed  upon  the  calendar  in  pursuance  of  rule  35. 

:?.  A  term  of  this  court  shall  be  held  annually  in  the  city  of  Seattle,  in 
the  state  of  Washington,  and  in  the  city  of  Portland,  in  the  state  of  Oregon. 
The  Seattle  term  shall  be  held  beginning  upon  the  second  Monday  in  Sep- 
tember, and  the  term  at  Portland  shall  be  held  beginning  upon  the  third 


858  APPENDIX 

Monday  in  September.  All  appeals  and  writs  of  error  from  the  district 
courts  for  the  districts  of  Washington,  the  transcripts  of  which  shall  be 
filed  fh  this  court  between  the  first  day  of  April  and  the  first  day  of  August 
of  each  year,  shall  be  heard  at  said  annual  term  in  the  city  of  Seattle,  unless 
it  be  stipulated  by  the  parties  thereto  that  they  be  heard  at  San  Francisco. 
All  other  appeals  and  writs  of  error  from  said  district  courts  for  those 
districts  shall  be  heard  at  San  Francisco,  unless  it  be  stipulated  by  the 
parties  thereto  that  they  be  heard  at  said  annual  term  in  the  city  of 
Seattle.  All  appeals  and  writs  of  error  from  the  district  court  for  the 
district  of  Oregon,  the  transcripts  of  which  shall  be  filed  in  this  court 
between  the  first  day  of  April  and  the  first  day  of  August  of  each  year,  shall 
be  heard  at  said  annual  term  in  the  city  of  Portland,  unless  it  be  stipulated 
by  the  parties  thereto  that  they  be  heard  at  San  Francisco.  All  other  appeals 
and  writs  of  error  from  said  district  court  for  that  district  shall  be  heard 
at  San  Francisco,  unless  it  be  stipulated  by  the  parties  thereto  that  they 
be  heard  at  said  annual  term  in  the  city  of  Portland.  Appeals  and  writs 
of  error  from  the  district  courts  of  the  districts  of  Idaho  and  Montana 
and  from  the  district  court  of  Alaska,  may,  upon  the  stipulation  of  the 
parties  thereto,  be  heard  at  the  annual  term,  and  be  held  either  at  Seattle 
or  Portland. 

RULE  37. 
CITATIONS  OF  AUTHORITIES. 

Second  circuit. — In  the  preparation  of  briefs  any  citations  made  from  "Fed- 
eral Cases"  must  be  accompanied  by  the  citation  of  the  original  report  of 
the  case,  and  where  a  citation  is  made  from  the  American  Bankruptcy 
Reports,  citation  in  the  Federal  Reporter  or  United  States  Supreme  Court 
Reports  must  also  be  given.  If  the  case  is  not  reported  elsewhere  than  in 
Federal  Cases  or  American  Bankruptcy  Reports,  the  fact  must  be  so  stated. 

Fourth  circuit. — The  foregoing  rules  shall  be  in  force  on  and  after  April 
1st,  1912. 

Since  April  1st,  1912,  another  rule  has  been  added  in  the  Fourth  circuit, 
numbered  38. 

WRITS  OF  ERROR  IN  CRIMINAL  CASES. 

Fifth  circuit. — 1.  Writs  of  error  to  review  criminal  cases  tried  in  any  dis- 
trict or  circuit  court  of  the  United  States  within  this  circuit,  which  may 
be  reviewed  under  the  provisions  of  the  act  of  March  3,  1891,  creating  this 
court,  and  the  act  of  Congress  amendatory  thereof,  approved  January  20, 
1897,  may  be  allowed  in  term  time  or  in  vacation  by  the  circuit  justice 
assigned  to  this  circuit  by  either  of  the  circuit  judges,  or  by  any  district 
judge  who  presided  on  the  trial,  and  the  proper  security  be  taken,  and  the 
citation  be  signed  by  him,  and  he  may  also  grant  a  supersedeas  and  stay 
of  execution  or  proceedings  pending  the  determination  of  such  writ  of  error. 

2.  Where  such  writ  of  error  is  allowed  in  any  criminal  case  as  afore- 
said, the  circuit  court  or  district  court,  before  which  the  accused  was  tried, 
or  the  trial  judge,  or  the  circuit  justice  assigned  to  the  circuit,  or  either 


RULES   OF   THE   CIRCUIT    COURTS   OF   APPEALS  859 

of  the  circuit  judges,  shall  have  the  power,  after  the  citation  has  been  duly 
served,  to  admit  the  accused  to  bail  in  such  amount  as  may  be  fixed,  such 
bail  bond  to  be,  as  near  as  may  be,  in  the  form  prescribed  in  the  Appendix 
to  these  rules. 

APPENDIX  TO  RULE  37. 
(Form  of  Appearance  Bond  on  Writ  of  Error  in  Criminal  Cases.) 

Know  all  men  by  these  presents: 

That  we,  ,  as  principal,  and  ,  as  sureties,  are  held  and 

firmly  bound  unto  the  United  States  of  America   in  the  full  and  just  sum 

of  dollars,   to  be  paid   to   the   said  United   States   of  America,   to 

which  payment  well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs, 
executors  and  administrators,  jointly  and  severally,  by  these  presents. 

Sealed  with  our  seals  and  dated  this  day  of  ,  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  ninety . 

Whereas,   lately  at  the term,  A.  D.   189 — ,  of  the  court 

of  the  United  States  for  the  district  of  ,  in  a  suit  pend- 
ing in  said  court,  between  the  United  States  of  America,  plaintiff,  and 

,    defendant,    a    judgment    and    sentence    was    rendered    against   the 

said  ,  and  the  said  has  obtained  a  writ  of  error  from  the 

United  States  Circuit  Court  of  Appeals  for  the  Fifth  Circuit,  to  reverse 
the  judgment  and  sentence  in  the  aforesaid  suit,  and  a  citation  directed  to 
the  said  United  States  of  America,  citing  and  admonishing  the  United 
States  of  America  to  be  and  appear  in  the  United  States  Circuit  Court 
of  Appeals  for  the  Fifth  Circuit,  at  the  City  of  New  Orleans,  Louisiana, 
thirty  days  from  and  after  the  date  of  said  citation,  which  citation  has 
been  duly  served. 

Now  the  condition  of  the  above  obligation  is  such  that  if  the  said  

shall  appear  in  the  United  States  Circuit  Court  of  Appeals  for  the  Fifth 
Circuit,  on  the  first  day  of  the  next  term  thereof,  to  be  held  at  the  city 

of  -  — ,  on  the  first  Monday  in ,  A.  D.   189 — ,  and  from  day 

to  day  thereafter  during  said  term,  and  from  term  to  tern':,  and  from  time 
to  time,  until  finally  discharged  therefrom,  and  shall  abide  by  and  obey 
all  orders  made  by  the  said  United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit,  in  said  cause,  and  shall  surrender  himself  in  execution 
of  the  judgment  and  sentence  appealed  from  as  said  court  may  direct,  if 

the  judgment  and  sentence  of  the  said court  against  him  shall  be 

affirmed  by  the  said  United  States  Circuit  Court  of  Appeals  for  the  Fifth 
Circuit  then  the  above  obligation  to  be  void,  else  to  remain  in  full  force, 
virtue  and  effect. 

-  [Seal] 

-  [Seal] 
[Seal] 

Approved : 


Judge  of  the 


This  concludes  the  rules  in  the  Fifth  circuit. 


860  APPENDIX 

ORDER  OF  COURT. 

Eighth  circuit. — 1.  Before  the  filing  of  a  petition  to  revise,  the  same  shall 
be  presented  to  the  court,  or  one  of  the  circuit  judges,  for  leave  to  file 
the  same  and  for  an  order  fixing  the  return  day  to  the  notice  required  by 
law. 

2.  When  such  petition  is  accompanied  by  a  written  consent  that  the 
petition  to  revise  may  be  filed  and  waived  by  the  respondent  or  respondents, 
or  their  counsel,  of  such  notice,  no  notice  will  be  issued.  In  such  cases  the 
case  will  be  docketed  by  the  clerk. 

PHOTOGRAPH  OF  CHINESE  TO  BE  ATTACHED  TO  BAIL  BOND. 

Ninth  circuit. — Whenever,  in  cases  of  deportation  of  Chinese,  the  defend- 
ant be  admitted  to  bail  pending  appeal  before  the  bond  be  approved  and  the 
party  released  from  custody,  a  photograph  of  the  defendant  shall  be  attached 
to  said  bond. 

This  concludes  the  rules  in  the  Ninth  circuit. 

RULE  38. 
PETITIONS  TO  REVIEW  IN  BANKRUPTCY. 

Second  circuit. — Petitions  to  review  orders  in  bankruptcy  filed  under  the 
provisions  of  §  24b  of  the  bankruptcy  act  must  be  filed  and  served  within 
ten  days  after  the  entry  of  the  order  sought  to  be  reviewed,  and  a  transcript 
of  the  record  of  the  proceedings  in  the  bankruptcy  court  of  the  matter  to 
be  reviewed  must  be  filed  and  the  cause  docketed  within  thirty  days  there- 
after, but  the  judge  of  the  bankruptcy  court  may  for  good  cause  shown 
enlarge  the  time  for  filing  the  petition  or  record,  the  order  of  enlargement  to 
be  made  and  filed  with  the  clerk  of  this  court  before  the  expiration  of  the 
times  hereby  limited  for  filing  the  petition  and  record  respectively. 

This  concludes  the  rules  in  the  Second  Circuit. 

Fourth  circuit. — On  and  after  February  1,  1913.  the  contents  of  transcripts 
of  record  on  appeal  in  equity  and  admiralty  causes  and  on  appeal  (as  dis- 
tinguished from  petitions  for  revision)  in  bankruptcy  causes,  shall  be 
governed  by  rules  75,  76,  and  77  of  the  Rules  of  Practice  for  the  Courts 
of  Equity  of  the  United  States,  promulgated  by  the  Supreme  Court  of  the 
United  States  November  4,  1912,  which  rules  are  as  follows : 

This  concludes  the  rules  in  the  Fourth  circuit. 

The  remainder  of  the  rules  in  the  Eighth  circuit  are  as  follows: 

NOTICE. 

The  notice  to  be  given,  as  provided  by  law,  shall  be  issued  by  the  clerk  of 
this  court,  under  the  seal  thereof,  and  shall  be  addressed  to  the  respondent 
or  respondents  and  be  served  by  the  marshal  unless  an  acknowledgment  or 
acceptance  of  services  thereof  is  made  by  the  respondent  or  respondents,  or 
their  counsel. 


EULES  OF  THE  CIRCUIT  COURTS  OF  APPEALS       861 

RULE  39. 
RESPONSE. 

The  response  to  the  petition,  when  the  respondent  elects  to  make  a  written 
response,  shall  be  filed  within  thirty  days  after  the  service  of  the  notice 
of  the  filing  of  a  waiver  thereof. 

RULE  40. 
PRINTING  OF  RECORD. 

1.  The  clerk  shall  cause  the  petition  and  exhibits  thereto,  if  any,  and  the 
order,  notice,  and  response,  if  any,  to  be  printed  as  soon  as  convenient  after 
the  response  is  filed  or  the  time  for  filing  such  response  has  expired  and 
shall  distribute  the  printed  copies  of  same  to  counsel  for  the  respective 
parties,  as  soon  as  the  same  are  printed. 

RULE  41. 
BRIEFS  AND  ARGUMENTS. 

Twenty  copies  of  the  brief  and  argument  in  behalf  of  petitioner  shall  be 
printed  and  filed  twenty  days  before  the  day  set  for  the  hearing  and  twenty 
copies  of  the  brief  and  argument  for  the  respondent  or  respondents  shall 
be  printed  and  filed  eight  days  before  the  day  of  hearing. 

RULE  42. 
HEARING. 

1.  Petitions   to   revise    filed    in    vacation,    shall    be    assigned    by   the    clerk 
for  hearing  in  their  regular  order  at  the  next  session  or  term  of  the  court 
in  the  same  manner  as  appeals  and  writs  of  error  in  other  cases. 

2.  Petitions  to  revise  filed  during  a  session  of  the  court,  when  a  sufficient 
showing  of  urgency  is  presented,  may  be  set  for  hearing  at  that  term  and 
upon  such  terms  and  conditions  as  the  court  may  direct. 

3.  Petitions    to    revise    assigned    by    the    clerk    in    their    regular    order    as 
provided   in   section   one   of   this   rule,   when   such   assignment   is   for   a   day 
near  the  close  of  the   session,  may  be  advanced  by  order  of  the  court  and 
set   for   an   earlier   day,   upon   good   cause   shown   therefor   by   either   of   the 
parties. 

RULE  43. 

COSTS. 

1.  The  costs  and  fees  now  provided  by  law  in  cases  upon  appeal  or  writ 
of  error,  .shall,  so  far  as  the  same  are  applicable,  be  taxed  on  petitions  to 
revise. 


862  APPENDIX 

2.  Upon  the  determination  of  a  petition  to  revise  such  order  as  to  costs 
will  be  made  as  the  court  may  deem  necessary. 

RULE  44. 
PROCEDENDO. 

1.  In   all  cases  on  a  petition   to  revise  wherein   the  action   or   decree   of 
the   district   court,   complained   of,   is   disapproved   by    this    court,   the   clerk 
shall,  at  the  expiration  of  thirty  days  from  and  after  the  date  of  entering  the 
decree  in  this  court,  issue  process  in  the  nature  of  a  procedendo  to  the  said 
district   court   for   the   purpose   of   informing   such   court  of  the   proceedings 
in  this  court,  so  that  further  proceedings  may  be  had  in  such  district  court 
in  conformity  with  the  decree  of  this  court. 

2.  In  all  cases  on  petition  to  revise,  wherein  the  action  or  decree  of  the 
district  court,  complained  of,  is  approved  and  confirmed,  or  certain  petition 
dismissed,   by  this   court,   the   clerk   shall   at   the   expiration   of   thirty   days 
certify  a  copy  of  such  decree  to  the  district  court. 

RULE  45. 
APPEALS  AND  WRITS  OF  ERROR  IN  BANKRUPTCY  CASES. 

1.  The  appeals  and  writs  of  error  provided  for  by  §  25  of  the  bank- 
ruptcy law,  approved  July  1st,  1898,  shall  be  governed  by  the  same  rules 
and  regulations  as  to  costs  and  procedure  as  are  provided  by  this  court  for 
appeals  and  writs  of  error  in  other  cases. 

ADDENDA. 

[Form   of   Writ   of   Error   for   use    in    the   United    States    Circuit    Court   of 

Appeals,   Eighth   Circuit.] 

UNITED  STATES  OF  AMERICA,  ss. 

The  President   of    the    United   States   of   America, 

To  the  Honorable  Judges  of  the  ( 1 )  

Greeting : 

BECAUSE,  in  the  records  and  proceedings,  as  also  in  the  rendition  of  the 

judgment  of  a  plea  which  is  in  the  said '.  .Court,  before  you,  at 

the Term,  19  ,  thereof,  between  (2) 

a  manifest  error  hath  happened,  to  the  great  damage  of  the  said   (3) 

as  by  

complaint  appears. 

NOTES — 1  Here  insert  correct  name  of  the  Court  to  which  the  writ  is 
addressed  and  whose  judgment  is  to  be  reviewed. 

2  Here  insert  correct  style  of  cause  showing  who  was  plaintiff  and  who 
defendant  in  Court  below. 

8  Here  insert  name  of  party  who  sues  out  writ  of  error. 


RULES   OF    THE   CIRCUIT    COURTS    OF   APPEALS  863 

We  being  willing  that  error,  if  any  hath  been,  should  be  duly  corrected, 
and  full  and  speedy  justice  done  to  the  parties  aforesaid  in  this  behalf,  do 
command  you,  if  judgment  be  therein  given,  that  then,  under  your  seal,  dis- 
tinctly and  openly,  you  send  the  record  and  proceedings  aforesaid,  with  all 
things  concerning  the  same,  to  the  United  States  Circuit  Court  of  Appeals, 

for  the   Circuit,  together  with  this  writ,  so  that  you  have  the  said 

record  and  proceedings  aforesaid  at  the  City  of   ,  and  filed 

in  the  office  of  the  Clerk  of  the  United  States  Circuit  Court  of  Appeals,  for 

the    Circuit,  on   or   before   the    (4)     day   of 

.  19 . .  . . ,  to  the  end  that  the  record  and  proceed- 
ings aforesaid  being  inspected,  the  United  States  Circuit  Court  of  Appeals 
may  cause  further  to  be  done  therein  to  correct  that  error,  what  of  right,  and 
according  to  the  laws  and  customs  of  the  United  States,  should  be  done. 

WITNESS,  the  Honorable  EDWARD  D.  WHITE,  Chief  Justice  of  the  United 

States,    this    day    of 

in  the  year  of  our  Lord  one  thousand 

nine  hundred 

ISSUED  at  office  in with  the 

seal  of  the   ( 5 )    

and  dated  as  aforesaid. 


Clerk  of 

ALLOWED  BY 


Judge. 

[Form  of  Return  to  be  indorsed  on  Writ  of  Error  by  the  Clerk  of  the  Court 
to  which  the  Writ  is  addressed.] 

UNITED  STATES  OF  AMERICA,         ~| 

}•  ss. 

J 


In  obedience  to  the  command  of  the  within  Writ,  I  herewith  transmit  to 
the  United  States  Circuit  Court  of  Appeals,  a  duly  certified  transcript  of 
the  record  and  proceedings  in  the  within  entitled  case,  with  all  things 
concerning  the  same. 

In  Witness  Whereof,  I  hereto  subscribe  my  name  and  affix  the  seal  of 
(6) 


Clerk  of 


*  Rule  XIV.  subdivision  5,  requires  writs  of  error  and  appeals  to  be  made 
returnable  sixty  days  after  citation  is  signed. 

This  blank  must  be  filled  accordingly,  naming  a  day  not  more  than  sixty 
days  after  the  date  of  the  citation. 

5  This   blank   should   be   so   filled   as   to   show   whether   the   writ   is   issued 
by  the  clerk  of  a  United  States  District  Court  or  by  the  Clerk  of  the  Circuit 
Court  of  Appeals. 

6  Here  describe  the  Court  to  which  the  writ  is  addressed. 


864  APPENDIX 

[Form  of  Citation.] 
UNITED  STATES  OF  AMERICA, 

To   Greeting : 

You   are   hereby   cited   and   admonished   to   be   and   appear    in   the    United 

States  Circuit  Court  of  Appeals  for  the Circuit,  at  the  City  of , 

,  sixty  days  from  and  after  the  day  this  citation  bears  date,  pur- 
suant to  ( 1 )    filed  in  the  Clerk's  Office  of  the   (2 )    

wherein    is    ( 3 )     

and  you  are  (4)    ,  to  show  cause,  if  any  there  be,  why  the 

(5)    rendered  against  the  said   (6)    as  in 

said    (7)     mentioned   should   not   be   corrected,   and    why 

speedy  justice  should  not  be  done  the  parties  in  that  behalf. 

WHEREAS,  lately  at  the term  of  the   

Judge  of   this    day  of 

..A.  D.  19.. 


Judge  of  

(Form  of  Supersedeas  or  Cost  Bond.) 

KNOW  AIX  MEN  BY  THESE  PUESEXTS: 

That  we,  are  held  and 

lirmly  bound  unto  in  the  full  and  just 

sum  of to  be  paid  to  the  said heirs, 

executors,  administrators,  successors  or  assigns,  to  which  payment  well  and 
truly  to  be  made,  we  bind  ourselves,  OUT  heirs,  executors  and  administrators, 
successors  or  assigns,  jointly  and  severally  by  these  presents.  Sealed  with 

our  seals,  and  dated  this  day  of  ,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  

WHHEREAS,  lately  at  the term  of  the 

in  a  suit  depending  in  said  Court  between  ,  plain- 
tiff, and  ,  defendant,  

was  rendered  against  the  said  and  the 

said  has  obtained  of 

the  said  Court  to  reverse  the  in  the  aforesaid  suit,  and  a 

citation  directed  to  the  said  '. citing  and 

admonishing  to  be  and  appear  in  the  L  nited 

States  Circuit  Court  of  Appeals  for  the  Circuit,  at  the  City  of 

,  sixty  days  from  and  after  the  date  of  said  citation. 

Now,  the  condition  of  the  above  obligation  is  such,  that  if  the  said  

shall  prosecute  said  to  effect, 

XOTES — 1  Insert   (a  writ  of  error)    or   (an  appeal  allowed  and). 
2  Insert    name    of    Court   to   which    writ   of   error    is    addressed,    or    from 
which  appeal  is  allowed. 

8  Insert  Plaintiff  in  Error  or  Appellant, 
*  Insert  Defendant  in  Error  or  Appellee. 

5  Insert  Judgment  or  Decree. 

6  Insert  Plaintiff  in  Error  or  Appellant. 
'  Insert  Writ  of  Error  or  Appeal. 


EULES   OF   THE    CIRCUIT    COUETS   OF   APPEALS  805 

and  answer  all  damages  and  costs  if   fail  to 

make  good    plea,   then  the  above   obligation   to 

Jbe  void,  else  to  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  presence  of 

Approved    by  ( Seal ) 

(Seal) 

(Seal) 

(The  foregoing  bond  and  citation   is  adapted  for  appeals  in  equity  cases 
as  well  as  in  cases  of  writs  of  error  in  actions  at  law.) 

[Form  of  Appearance  Bond  on  Writ  of  Error  in  Criminal  Cases.] 

KNOW  ALL  MEN  BY  THESE  PRESENTS: 

That  we, 

as  principal,  and  

as  sureties,  are  held  and  firmly  bound  unto  the  United  States  of  America  in 

the  full  and  just  sum  of  Dollars,  to  be  paid  to 

the  United  States  of  America,  to  which  payment  well  and  truly  to  be  made 
we  bind  ourselves,  our  heirs,  executors  and  administrators  jointly  and  severally 
by  these  presents. 

Sealed  with  our  seals  and  dated  this  day  of  

in  the  year  of  our  Lord,  One  Thousand  Nine  Hundred  

WHEREAS,  lately  at  the Term,  A.  D.  19  ,  of  the 

Court  of  the  United  States  for  the  District 

of  .  .  . . ,  in  a  suit  depending  in  said  Court  between 

the  United  States  of  America,  plaintiff,  and  

defendant. .  . . , 

a  judgment  and  sentence  was  rendered  against  the  said  

and  the  said 

lias    obtained    a    writ    of    error    from    the    United    States    Circuit    Court    of 
Appeals  for  the  ........  Circuit,  to  reverse  the  judgment  and  sentence  in  the 

aforesaid  suit,  and  a  citation  directed  to  the  said  United  States  of  America, 
citing  and  admonishing  the  United  States  of  America  to  be  and  appear  in 

the  United  States  Circuit  Court  of  Appeals  for  the   •. .   Circuit,  at  the 

city  of , ,  sixty  days  from  and  after  the  date  of  said 

citation,  which  citation  has  been  duly  served. 

Now  the  condition  of  the  above  obligation  is  such  that  if  the  said 

shall  appear  either  in  person  or  by  attorney  in  the  United  States  Circuit  Court 
of  Appeals  for  the Circuit  on  such  a  day  or  days  as  may  be  appoint- 
ed for  the  hearing  of  said  cause  in  said  Court  and  prosecute  his  said  writ 
of  error  and  shall  abide  by  and  obey  all  orders  made  by  the  United  States 

Circuit  Court  of  Appeals  for  the  Circuit  in  said  cause,  and  shall 

surrender  himself  in  execution  of  the  judgment  and  sentence  appealed  from 
as  said  Court  may  direct,  if  the  judgment  and  sentence  against  him  shall 
be  affirmed  or  the  writ  of  error  or  appeal  is  dismissed;  and  if  he  shall 

appear  for  trial  in  the 

Court  of  the  United  States  for  the District  of 

on  such  day  or  days  as  may  be  appointed  for  a  retrial  by  said 

Court  and  abide  by  and  obey  all  orders  made  by  said  Court  pro- 

Montg. — 55. 


866  APPENDIX 

vided  the  judgment  and  sentence  against  him  shall  be  reversed  by  the  United 

States   Circuit   Court  of  Appeals   for  the    Circuit ;    then  the   above 

obligation  to  be  void,  otherwise  to  remain  in  full  force,  virtue  and  effect. 
[SEAL.] 

[SEAL.] 

[SEAL.] 

Approved: — 


Judge  of  the 


INSTRUCTIONS  AS  TO  APPLICATIONS  FOR  WRITS  OF  CERTIORARI 
UNDER  §  240  OF  THE  JUDICIAL  CODE. 

The  following  are  the  requirements  of  the  Supreme  Court  on  applications 
for  writs  of  certiorari  under  §  240  of  the  Judicial  Code. 

Petitions  are  docketed  in  this  court  as 
,  Petitioner,  vs ,  Respondent. 

Before  the   petition  will  be  docketed  there  must  be  furnished  this   office: 

1.  An  original  petition,  with  written  signature  of  counsel. 

2.  A  certified  copy  of  the  transcript  of  the  record,  including  all  proceed- 
ings in  the  circuit  court   of  appeals. 

3.  An   appearance   of  counsel  for   petitioner,  signed  by  a  member  of  the 
bar  of  this  court. 

4.  A  deposit  of  twenty-five  dollars  on  account  of  costs. 
Before  submission  of  the  petition  there  must  be  furnished: 

1.  Proof   of   service   of  notice   of   date   fixed   for  submission   and   of  copies 
of  petition   and   brief  upon   counsel   for   the   respondent.     About  two  weeks' 
notice  should  be  given. 

2.  Twenty-five   (25)   printed  copies  of  the  petition. 

3.  Twenty -five    (25)    printed  copies  of  brief  in  support  of  petition,  if  any 
such  brief  is  to  be  filed. 

4.  At  least  nine    (9)    uncertified  copies  of  record,  which  must  contain  all 
the  proceedings  in  the  circuit  court  of  appeals.     These  copies  may  be  made 
up  by  using  copies  of  the  record  as  printed  for  the  circuit  court  of  appeals  and 
adding  thereto  printed  copies  of  the  proceedings  in  that  court.     If  a  sufficient 
number  of  records  thus  made  up  can  not  be  obtained,  making  it  necessary 
to  reprint  the  record  for  use  on  the  hearing  of  the  petition,  fifty   (50)   copies 
must  be  printed  under  my  supervision,  in  order  that,  should  the  petition  be 
granted,  there  may  be  a  sufficient  number  for  use  on  the  final  hearing. 

Monday  being  motion  day,  some  Monday  must  be  fixed  upon  for  the  sub- 
mission of  the  petition.  No  oral  argument  is  permitted  on  such  petitions, 
but  they  must  be  called  up  and  submitted  in  open  court  by  counsel  for  pe- 
titioner, or  by  some  attorney  in  his  behalf. 

If  a  respondent  desires  to  oppose  a  petition,  twenty-five  (25)  copies  of 
a  brief  for  such  respondent  must  be  filed.  These  briefs  must  bear  the  name 
of  a  member  of  the  bar  of  this  court,  who  should  also  enter  an  appearance 
for  the  respondent.  It  is  not  necessary,  however,  for  such  counsel  to  be 
present  in  court  when  the  petition  is  submitted. 

All  papers  in  the  case  must  be  filed  not  later  tlian  the  Saturday  preceding 
the  Monday  fixed  for  the  submission  of  the  petition. 

JAMES  H.  MCKENXEY, 
Clerk  of  the  Supreme  Court  of  the  United  States. 


BULES   OF   THE   CIRCUIT    COURTS   OF   APPEALS  867 

INSTRUCTIONS    AS    TO    TAKING   APPEALS,    SUING    OUT    WRITS    OF 
ERROR,  MAKING  UP  RECORDS,  ETC. 

METHOD  OF  TAKING  APPEALS. 

Writs  of  error  and  citations  are  no  longer  made  returnable  to  the  term 
day  of  the  appellate  court,  but  are  made  returnable  not  exceeding  forty 
days  from  the  day  of  signing  the  citation,  whether  that  day,  which  is  the 
return  day,  fall  in  vacation  or  in  term  time;  and  the  record  must  be  filed 
in  the  clerk's  office  of  this  court  before  the  return  day,  unless  the  time  be 
enlarged  as  provided  in  §  1  of  rule  16,  and  §  6  of  rule  23.  In  that  case 
the  order  of  enlargement  must  be  filed  with  the  clerk  of  this  court. 

Rule  11,  entitled  "Assignment  of  Errors,"  requires  the  plaintiff  in  error, 
or  appellant,  to  file  with  the  court  below,  with  his  petition  for  the  writ 
of  error  or  appeal,  an  assignment  of  errors.  Appeals  and  writs  of  error 
should  be  prayed  for  by  petition  in  writing  addressed  to  the  court  below, 
or  to  the  judge  in  vacation,  who  allows  the  writ  or  the  appeal,  by  an  order 
in  writing,  approves  the  appeal  or  supersedeas  bond,  and  signs  the  citation. 

In  cases  brought  up  by  writ  of  error  from  the  district  court,  the  clerk 
of  the  district  court,  or  the  clerk  of  this  court,  issues  the  writ  of  error, 
which  writ  fixes  the  return  day,  and  the  citation  should  bear  the  same  return 
day.  But  in  cases  of  appeal  (in  admiralty  or  in  equity),  the  citation  alone 
fixes  the  return  day. 

All  appeals,  therefore,  whether  by  writ  of  error  or  appeal,  should  here- 
after be  taken  in  the  following  manner: 

1.  Petition  in  wjiting  for  the  appeal,  or  writ  of  error,   addressed  to  the 
court  below,  or  the  judge  thereof  in  vacation. 

2.  The  petition  must  be  accompanied  with  an  assignment  of  errors,  and  a 
prayer  for  reversal. 

3.  Appeal  or  writ  of  error  bond,  approval  thereof,  and  the  signing  of  the 
citation  by  the  judge  allowing  the  appeal  or  writ. 

4.  Order  in  writing  of  the  judge  allowing  the  writ  of  error  or  appeal. 

5.  Issuing  the  writ  of  error  by  the  clerk  of  the  district  court  or  under  this 
court. 

6.  In  case  it  is  desired  to  have  the  writ  of  error  issued  by  the  clerk  of 
this    court,   a   certified   copy    of   the   petition   and   order   allowing   the   writ, 
under  the  seal  of  the  court  with   a  fee  of  five  dollars   for   issuing  it,  must 
be  transmitted  to  the  clerk  of  this  court,  and  the  writ  will  be  issued  and 
forwarded  to  the  clerk  of  the  court  below. 

All  of  the  above  papers  and  proceedings  should  be  filed  by  the  clerk  of 
the  lower  court.  The  writ  of  error  and  the  citation,  the  originals  of  which, 
after  having  been  duly  served,  must  be  attached  to  and  bound  in  the  record 
at  their  respective  places.  (For  service  of  writ  of  error  see  §  1007,  R.  S.) 

In  cases  brought  up  by  petitions  to  superintend  and  revise  in  bankruptcy, 
see  rule  36. 

Rules  of  this  court,  blank  writs  of  error,  appeals  and  supersedeas  bonds, 
citations,  and  orders  of  appearance  may  be  had  of  the  clerks  of  the  lower 
courts  or  of  the  clerks  of  this  court  upon  application. 

MAKING  UP  RECORDS. 
In  making  up  a  transcript  of  the  record,  clerks  are  requested  to  make  a 


APPENDIX 


distinct  title  or  heading  to  each  paper  or  proceeding  copied  into  the  record, 
with   the   date   of   filing  the   same,   or   the   date   of   such    proceeding   and   to 
write  upon  but  one  side  of  the  paper  in  a  clear,  legible  hand.     And  a  com- 
plete index  should  be  made  in  chronological  order  and  attached  to  the  record 
at   the   beginning   of    it.      In   order   to    have   uniformity,    records   should    be 
commenced  in  the  style  and  the  term  of  the  court  to  which  the  judgment  or 
decree  is  entered  as  the  following  form: 
The  United  States  of  America, 
District  of  ,  to-wit: 

At  a  District  Court  of  the  United  States  for  the  District  of 

,  begun  and  held  at  the  Court-house  in  the  city  of  ,  on 

the  first  Monday  of being  the day  of  the  same  month,  in 

the  year  of  our  Lord  one  thousand,  nine  hundred  and 

Present:  The  Honorable   ,  District  Judge,  for  the 

District  of    

Among  others  were  the  following  proceedings,  to-wit: 
A.   B.  1    In  Equity    (or) 

vs.  L    In  Admiralty    (or) 

C.  D.  J    At  Law. 

Bill  of  Complaint  (or) 

Libel  (or) 

Declaration  (or  Complaint) 

Filed  ,  191          (date  of  filing)." 

(Copy  same  with  all  material  indorsements,  and  any  accompanying  papers 
and  exhibits,  and  so  on  with  every  paper  or  proceeding  in  the  case.) 

As  to  the  general  order  of  making  up   a  record,   the   following   examples 
are  given: 

IN  EQUITY.  IN  ADMIRALTY.  AT  LAW. 


1.  Style  of  Court  as 
Above. 

2.  Bill  of  Complaint, 
etc. 

3.  Process. 

4.  Marshal's  Return. 

5.  Answer. 

6.  Replication. 

7.  Testimony         and 

Exhibits  for  Com- 
plainant. 

8.  Testimony       and 
Exhibits   for   De- 
fendant. 

9.  Testimony       and 
Exhibits     in    Re- 
buttal. 

10.  Opinion. 

11.  Decree. 

12.  Assignment  of  Er- 

rors. 


1.  Style  of  Court  as 

Above. 

2.  Libel. 

3.  Process. 

4.  Marshal's  Return. 

5.  Claim. 

6.  Stipulation. 

7.  Answer. 

8.  Testimony        and 

Exhibits       fof 
Libellant. 

9.  Testimony         and 

Exhibits        for 
Respondent. 

10.  Testimony        and 

Exhibits  in  Re- 
buttal. 

11.  Opinion. 

12.  Decree. 

13.  Assignment  of  Er- 

rors. 


1.  Style  of  Court  as 

Above. 

2.  Declaration. 

3.  Process. 

4.  Marshal's  Return. 

5.  Plea     or     Demur- 

rer,  etc. 

6.  Joining  of  Issue. 

7.  Impaneling   Jury. 

8.  Verdict. 

9.  Judgment. 

10.  Bill      of      Excep- 

tions. 

11.  Assignment         of 

Errors. 


BULES   OF   THE   CIRCUIT   COURTS   OF   APPEALS  869 

FORM  OF  MEMORANDUM  TO  BE  INSERTED  IN  A  COMMON  LAW  CASE 
AS  PROVIDED  BY  SEC.  7  OF  RULE  14. 

\ 

( 1 )  Petition  for  writ  of  error  filed day  of ,  19 ... 

( 2 )  Writ  of  error  granted   .' day  of   ,  19 ... 

( 3 )  Writ  of  error  issued   day  of   ,  19 ... 

( 4 )  Copy  of  writ  of  error  lodged  for  adverse  party day  of , 

1!)     . 

(5)  Appeal  Bond:     Dated day  of ,  19... 

Penalty  $ 

Obligors : 


Condition  for  costs  and  damages   (or  for  costs). 

(6)    Citation.    Dated day  of ,  19. .. 

Return.     Dated   day  of   ,  19 ... 

Or  Waiver  of  service  Dated day  of ,  19 ... 

Note:  Similar  memorandum  mutatis  mutandis  to  be  used  in  admiralty 
and  equity  cases. 

The  petition  for  writ  of  error  or  appeal,  the  order  granting  writ  of  error 
or  appeal,  the  writ  of  error,  the  appeal  bond,  the  citation,  the  return  of 
service  or  waiver  of  service  should  not  be  copied  into  the  record,  but  the 
originals  thereof  shall  be  sent  up  and  accompany  the  transcript  of  the  record. 

In  transcribing  bills  of  exceptions  into  the  record  in  cases  at  law,  clerks 
will  carefully  inspect  such  bills  of  exceptions  and  wherever  the  words 
"here  insert,"  occur,  the  paper  or  matter  called  for  should  be  bodily  in- 
corporated into  the  record  at  that  place. 

In  making  up  records  in  admiralty  cases,  the  following  should  be  omit- 
ted (See  rule  52  of  the  Supreme  Court  in  Admiralty.): 

1.  The  continuances. 

2.  All  motions,   rules,   and  orders   not  excepted  to  which  are  merely  pre- 
paratory for  trial. 

3.  The  commissions   to   take   depositions,   notices   therefor,   their   captions, 
and  certificates  of  their  being  sworn  to,  unless  some  exception  to  a  deposi- 
tion  in  the  district  court  was   founded  on   some  one  or   more  of  these;    in 
which  case,  so  much  of  either  of  them  as  may  be  involved  in  the  exceptions 
shall  be  set  out.     In  all  other  cases  it  shall  be  sufficient  to  give  the  name 
of  the  witness  and  to  copy  the  interrogatories  and  answers,  and  to  state  the 
name  of  the  commissioner  and  the  place  where  and  the  date  'when  the  deposi- 
tion was  sworn  to,  and  in  copying  of  depositions  taken  on  interrogatory,  the 
answer  shall  be  inserted  immediately  following  the  question. 


870  APPENDIX 

FORM   FOB  THE  COVER  OF  A  TRANSCRIPT  OF  THE  RECORD. 

TRANSCRIPT  OF  THE  RECORD. 

UNITED    STATES    CIRCUIT    COURT    OF    APPEALS. 

Fourth   Circuit. 
No. . 


Plaintiff  in  Error,   or  Appellant,   or  Petitioner, 
versus 

Defendant  in  Error,  or  Appellee,  or  Respondent. 

In  erroi    to    (or  appeal  from   or   on   petition   for   review   from)    the   District 
Court  of  the  United  States  for  the District  of ,  at 

DOCKETING  CASES  AND  PRINTING  RECORDS.  ' 

Upon  a  record  being  filed,  the  case  is  docketed  and  is  put  upon  the  calendar 
for  argument  at  the  next  term,  or  adjourned  term,  occurring  thereafter, 
provided  the  record  has  been  printed  and  copies  thereof  are  delivered  to 
opposing  counsel  twenty  days  before  the  said  term  or  adjourned  term,  as 
provided  in  sec.  2,  rule  17. 

Clerk  or  counsel  transmitting  a  record  to  this  court  must  accompany 
the  same  with  an  order  of  appearance  for  the  appellant  or  plaintiff  in  error, 
and  also  with  a  deposit  of  $25  for  account  of  his  costs  to  accrue  in  this 
court,  and  the  names  and  addresses  of  the  attorneys  on  both  sides. 

The  clerk  of  this  court  will  immediately  upon  a  transcript  of  the  record 
being  filed  under  rule  23,  send  to  the  counsel  an  estimate  of  the  cost  of 
printing,  supervising  fees,  etc.,  which  amount  must  be  deposited,  either  in 
cash  or  by  New  York  exchange,  with  the  clerk  within  ten  days  after  notice. 
See  rule  23. 

It  is  important  that  records  should  be  made  up  and  forwarded  to  this  office 
as  promptly  as  possible  after  the  appeal  or  writ  of  error  is  allowed,  and  not 
held  until  the  near  approach  of  the  next  term. 

Defendants  in  error,  appellees,  or  respondents  are  required,  at  the  time 
of  entering  their  appearance  by  attorney,  to  make  a  deposit  of  $20  for  ac- 
count of  costs  to  be  incurred  by  them  in  this  court.  In  case  of  affirmance, 
or  dismissal,  when  all  costs  shall  have  been  paid  by  the  plaintiff  in  error, 
appellant,  or  petitioner,  the  said  deposit  will  be  returned.  This  is  applicable 
to  all  cases  except  when  the  United  States  is  defendant  in  error  or  appellee. 
See  §  5,  rule  16. 


RULES  IN  ADMIRALTY. 


UNITED  STATES  CIRCUIT  COURT  OF  APPEALS. 

In  the  First,  Second,  Third,  Fifth,  Seventh,  and  Eighth  circuits  these  rules 
are  the  same  as  provided  in  General  Admiralty  Rule  No.  52  of  the  Supreme 
Court,  with  the  addition  in  the  First  Circuit  of  §§  6  and  7  of  rule  14  of  the 
C.  C.  A. 

In  the  Fourth  circuit  they  are  as  follows: 

Rules  1,  2,  3,  4,  5,  6,  7,  8,  10,  and  11  are  the  same  as  corresponding  rules  in 
the  Ninth  circuit,  and  the  remainder  are  as  follows: 

RULE  9. 
NEW  TESTIMONY— HOW  TAKEN. 

Such  testimony  shall  be  taken  by  deposition  before  any  United  States  com- 
missioner, or  notary  public,  upon  reasonable  notice  in  writing  given  to  the 
opposite  party;  or  by  commission  issued  out  of  this  court  with  interrogatories 
annexed.  Upon  proper  cause  shown,  the  court  may  grant  an  open  commis- 
sion. 

RULE  12. 
WRIT  OF  INHIBITION. 

A  writ  of  inhibition  may  be  awarded  by  this  court  on  motion  of  the  ap- 
pellant to  stay  proceedings  in  the  court  below  when  circumstances  require. 

RULE  13. 
MANDAMUS. 

A  mandamus  may,  in  like  manner,  be  obtained  to  compel  a  return  of  the 
apostles  when  unreasonably  delayed  by  the  clerk,  or  court  below. 

871 


872  APPENDIX 

RULE  14. 
CASES  TO  BE  PLACED  ON  DOCKET. 

Each  case  shall  be  filed  on  the  docket  as  soon  as  the  printing  of  the  apostles 
is  completed  by  the  clerk. 

RULE  15. 
BRIEFS. 

Sec.  1.  Counsel  for  the  appeal  shall  file  with  the  clerk  of  this  court,  at 
least  twenty  days  before  the  case  is  called  for  argument  ten  copies  of  a  print- 
ed brief,  and  shall  at  the  same  time  serve  two  copies  thereof  on  the  proctors 
of  record,  or  on  the  counsel  engaged  upon  the  opposite  side.  This  brief  shall 
contain  in  order  here  stated: 

(1)  A  statement  of  the  nature  of  the  appeal,  the  court  from  which  the  ap- 
peal is  taken,  and  a  concise  abstract  or  statement  of  the  case,  presenting  suc- 
cinctly the  questions  involved,  and  the  manner  in  which  they  were  raised. 

(2)  If  the  pleadings  have  been  amended  in  this  court  or  new  proofs  have 
been  taken,  it  shall  be  stated  what  amendments  have  been  made  and  in  what 
respect  the  new  proofs  have  changed,  or  tended  to  change,  the  case  as  made 
in  the  court  below. 

(3)  A  brief  of  the  argument,  exhibiting  a  clear  statement  of  the   point* 
of  law  or  fact  to  be  discussed,  with  a  reference  to  the  folios  of  the  record  or 
to  the  numbers  of  the  questions,  and  the  authorities  relied  upon  in  support- 
of  each  point. 

Sec.  2.  The  counsel  for  the  appellee  shall  file  with  the  clerk  of  the  court 
ten  printed  copies  of  his  brief  and  serve  two  copies  thereof  at  least  ten  days 
before  the  case  is  called  for  argument.  His  brief  shall  be  of  a  like  char- 
acter with  that  required  of  the  appellant,  and  in  case  new  proofs  are  taken 
on  behalf  of  the  appellee,  the  brief  shall  so  state  and  wherein  the  new  proofs 
have  changed  the  case  as  made  in  the  court  below. 

Sec.  3.  The  reasonable  expense  of  printing  briefs  shall  be  an  item  of  tax- 
able costs. 

RULE  17. 

EXTENSION  OF  TIME. 

The  time  specified  in  the  foregoing  rule  for  any  proceeding  may  be  extended 
by  order  of  judge  of  this  court. 

RULE  18. 
WHEN  RULES  OF  DISTRICT  COURTS  TO  APPLY. 

In  all  matters  in  civil  causes  of  admiralty  not  expressly  provided  for 
by  the  foregoing  rules  of  this  court,  the  rules  of  practice  of  the  district  court 


RULES   IN   ADMIRALTY  873 

of  the  district  by  which  the  cause  was  decided,  being  in  force  at  the  time  (not 
being  inconsistent  with  these  rules),  will  be  adopted  so  far  as  may  seem 
proper. 

»  • 

RULE  19. 

WHAT  GENERAL.  RULES  SHALL  BE  DEEMED  ADMIRALTY  RULES. 

The  following  of  the  General  Rules  of  this  Court,  and  no  others,  shall  be 
deemed  admiralty  rules,  viz.:  Rules  3,  4,  5,  6,  7,  9,  11,  12;  Sec.  4  of  rule 
14;  Rules  15,  16,  17,  18,  19,  20,  21,  22,  23;  Sec.  5  of  General  Rule  24;  Rules 
25,  26,  27,  28,  29;  Sec.  4  of  Rule  30;  Rules  31,  32,  34,  36  and  37. 

In  the  Sixth  circuit  these  rules  are  same  as  the  general  Equity  Rules. 

In  the  Ninth  circuit  these  rules  are  as  follows: 

1. 
APPEALS  AND  NEW  PLEADINGS. 

An  appeal  to  the  circuit  court"  of  appeals  shall  be  taken  by  filing  in  the 
office  of  the  clerk  of  the  district  court,  and  serving  on  the  proctor  of  the  ad- 
verse party  a  notice  signed  by  the  appellant  or  his  proctor  that  the  party 
appeals  to  the  circuit  court  of  appeals  from  the  decree  complained  of. 

The  appeal  shall  be  heard  qn  the  pleadings  and  evidence  in  the  district 
court,  unless  the  appellate  court,  on  motion,  otherwise  order. 


NOTICE   AND  BOND. 

Sec.  1.  When  a  notice  of  appeal  is  served,  the  appellant  shall  file  in  the 
clerk's  office  of  the  district  court  a  bond  for  costs  of  the  appeal,  with  suffi- 
cient surety  in  the  sum  of  $250,  conditioned  that  the  appellant  shall  prosecute 
his  appeal  to  effect  and  pay  the  costs,  if  the  appeal  is  not  sustained.  Such 
security  shall  be  given  within  ten  days  after  filing  the  notice,  or  the  appeal 
t*hall  be  deemed  abandoned,  and  the  decree  of  the  court  below  enforced,  unless 
otherwise  ordered  by  a  judge  of  this  court. 


This  rule  so  far  modifies  rule  11  of  the  General  Rules  that  a  petition  for 
an  appeal  and  the  allowance  thereof  is  not  required  in  an  admiralty  case, 
nor  is  the  assignment  of  errors  required  to  be  filed  with  notice  of  appeal. 
The  assignment  of  errors  must,  however,  be  sent  up  to  the  appellate  court 
with  the  apostles,  as  required  in  rule  4  of  the  Admiralty  Rules.  (Kenney 
v.  Louie,  No.  939.  Motion  to  dismiss  appeal  denied,  May  6,  1903.) 

Sec.  2.  And  if  the  appellant  desires  to  stay  the  execution  of  the  decree 
of  the  court  below,  the  bond  which  he  shall  give  shall  be  a  bond  with  suffi- 
cient surety  in  such  further  sum  as  the  judge  of  the  district  court  or  a  judy 
of  this  court  shall  order,  conditioned  that  he  will  abide  by  and  perform  what- 


874  APPENDIX 

ever  decree  may  be  rendered  by  this  court  in  the  cause,  or  on  the  mandate 
of  this  court  by  the  court  below. 

Sec.  3.  The  appellant  shall,  on  filing  either  of  such  bonds,  give  notice  of 
such  filing,  and  of  the  names  and  residences  of  the-  sureties,  and  if  the  ap- 
pellee, within  two  days,  excepts  to  the  sureties  they  shall  justify,  on  no- 
tice, within  two  days  after  such  exception. 

3. 

REVIEW  IN  PART  ONLY. 

The  appellant  may  also,  at  his  option,  state  in  his  notice  of  appeal  that 
he  desires  only  to  review  one  or  more  questions  involved  in  the  cause,  which 
questions  must  be  clearly  and  succinctly  stated;  and  he  shall  be  concluded 
in  this  behalf  by  such  notice,  and  the  review  upon  such  an  appeal  shall  be 
limited  to  such  question  or  questions. 

4. 
APOSTLES  ON  APPEAL- TO  CONTAIN. 

Sec.  1.  The  apostles,  on  an  appeal  to  this  court,  shall,  in  cases  where  a 
general  notice  of  appeal  is  served,  consist  of  the  following: 

(1)  A  caption  exhibiting  the  proper  style  of  the  court  and  the  title  of  the 
cause,  and  a  statement  showing  the  time  of  the  commencement  of  the  suit; 
the  names  of  the  parties,  setting  forth  the  original  parties  and  those  who 
have  become  parties  before  the  appeal,  if  any  change  has  taken   place;   the 
several  dates  when  the  respective  pleadings  were  filed,  whether  or  not  the  de- 
fendant was  arrested,  or  bail  taken,  or  properly  attached,  or  erased  and  if 
so,  an  account  of  the  proceedings  thereunder;   the  time  when  the  trial  was 
had,  and  the  name  of  the  judge  hearing  the  same;  whether  or  not  any  ques- 
tion was  referred  to  a  commissioner,  or  commissioners,  and  if  so,  the  result 
of  the  proceedings  and  report  thereon;  the  date  of  the  entry  of  the  interroga- 
tory and  final  decree;  and  the  date  when  the  notice  of  appeal  was  filed. 

(2)  All  the  pleadings,  with  the  exhibit  annexed  thereto. 

(3)  All  the  testimony  and  other  proofs  adduced  in  the  cause. 

(4)  The  interlocutory  decree  and  any  order  of  the  court  which  appellant 
may  desire  to  have  reviewed  on  the  appeal. 

(5)  Any  report   of  a   commissioner   or   commissioners   to   which   exception 
may  have  been  taken,  with  the  order  or  orders  of  the  court  respecting  the 
same,  and  the  exceptions  to  the  report,  and  so  much  of  the  testimony  taken 
in  the  proceedings  as  may  be  necessary  to  a  review  of  the  exceptions. 

(6)  All    expense    of    the    court,   whether    upon    interlocutory    questions    or 
finally  deciding  the  cause. 

(7)  The  final  decree,  and  the  notice  of  appeal;  and 

(8)  The  assignment  of  error. 

Sec.  2.  All  other  papers  shall  be  omitted  unless  otherwise  ordered  by  the 
judge  who  heard  the  cause. 

Sec.  3.     Where  the  appellant  shall  appear  specially  and   seek  only  to  re- 


RULES   IN   ADMIRALTY  875 

view  one  or  more  questions  in  the  cause,  the  apostles  may,  by  stipulation  be- 
tween the  proctors  for  the  respective  parties,  contain  only  such  papers  and 
proceedings  and  evidence  as  are  necessary  to  review  the  questions  raised  by 
the  appeal. 

5. 
CERTIFYING  RECORDS. 

The  appellant  shall,  within  thirty  days  after  giving  notice  of  appeal,  pro- 
cure to  be  filed  in  this  court  the  apostles  certified  by  the  clerk  of  the  district 
court,  or  in  case  of  a  special  appeal,  the  stipulated  record,  with  the  certifica- 
tion by  the  said  clerk  of  all  papers  contained  therein  on  file  in  his  office. 

6. 

IF  APPEARANCE  OF  APPELLEE  NOT  ENTERED. 

If  the  appellee  does  not  cause  his  appearance  to  be  entered  in  this  court 
within  ten  days  after  service  on  his  proctor  of  notice  that  the  apostles  are 
filed  in  this  court,  the  appellant  may  proceed  ex  parte  in  the  cause,  and  have 
such  decree  as  the  nature  of  the  case  may  demand. 

7. 

NEW  ALLEGATIONS,  ETC. 

Upon  sufficient  cause  shown,  this  court,  or  any  judge  thereof,  may  allow 
either  appellant  or  appellee  to  make  new  allegations  or  pray  different  relief 
or  interpose  a  new  defense,  or  make  new  proofs.  Application  for  such  leave 
may  be  made  at  any  time  after  the  perfecting  of  the  appeal  to  this  court,  and 
within  fifteen  days  after  the  filing  in  this  court  of  the  apostles,  and  upon 
at  least  four  days'  notice  to  the  adverse  party  or  his  attorney  of  record. 


NEW  PLEADINGS— NEW  TESTIMONY. 

If  leave  be  granted  to  make  new  allegations,  pray  different  relief  or  in- 
terpose a  new  defense,  the  moving  party  shall,  within  ten  days  thereafter, 
serve  such  new  pleading,  duly  verified,  on  the  adverse  party,  who  shall,  if 
such  pleading  be  a  libel,  within  twenty  days  answer  on  oath. 

If  leave  be  given  to  take  new  testimony,  the  same  may  be  taken  and  filed 
within  thirty  days  after  the  entry  of  the  order  granting  such  leave,  and  the 
adverse  party  may  take  and  file  counter  testimony  within  twenty  days  after 
such  filing. 


876  APPENDIX 

9. 
NEW  TESTIMONY— HOW  TAKEN. 

Such  testimony  shall  be  taken  by  deposition  before  the  clerk  of  this  court, 
or  any  United  States  commissioner,  or  any  clerk  of  a  district  court  of  the 
United  States,  or  any  notary  public  upon  reasonable  notice,  in  writing,  given 
to  the  opposite  party  or  his  attorney  of  record,  either  in  this  court  or  in  the 
court  below,  which  notice  must  state  the  name  or  names  of  the  witness  or 
witnesses  and  the  time  and  place  of  taking  his  or  their  deposition;  or  by  com- 
mission issued  out  of  this  court  with  interrogatories  annexed.  Upon  suffi- 
cient cause  shown,  the  court  may  grant  an  open  commission. 

10. 
PRINTING  NEW  PLEADINGS  AND  TESTIMONY. 

If  new  pleadings  are  filed  or  testimony  taken  in  this  court,  the  same  shall 
also  be  printed  and  furnished  by  the  clerk,  as  in  the  23d  General  Rule  pro- 
vided. 

11. 

MOTIONS. 
All  motions  shall  be  made  upon  at  least  four  days'  notice. 

12. 
EVIDENCE  OF  TIME. 

The  time  specified  in  the  foregoing  rules  for  any  proceeding  may  be  ex- 
tended by  order  of  a  judge  of  this  court. 


EQUITY  RULES  IN  FORCE 
FEBRUARY  1,  1913,  ANNOTATED. 


(Index  at  end  of  Rules.) 


877 


l 


EQUITY   RULES 


879 


TABLE  OF  OLD  EQUITY  RULES  SHOWING  WHAT  HAVE  BEEN  IN- 
CORPORATED AND  WHAT  OMITTED  IN  THE  NEW  EQUITY 
RULES.  - 

Those  marked  with  a  star  (*)  are  identical  with  the  new  rule  indicated. 


Old  New 

1—  1  par.  1. 

2 —  2  and  see  6. 

3 —  1  par.  2. 

4—  4-3-6. 

5—  5. 
6— Out. 

7 —  7*  substantially. 

8—  8. 

9—  9* 

10—11*  substantially. 

11—12. 

12—12. 

13—13* 

14 — 14*  substantially. 

15—15* 

16— Out— See  3. 

17— Out— See  16  and  12. 

18—16  and  17  and  58. 

19—17. 

20—25  par.  1. 

21—25  para.  1-2-3-5. 

22—25  par.  4. 

23—25  par.  5. 

24—24. 

25— Out. 

26—21. 

27— Out  See  21. 

28—28  and  19. 

29—28  par.  2. 

30— Out  See  19. 

31— Out  See  29. 

32— Out  See  29. 

33— Out  See  29. 

34— Out  See  29. 

35— Out  See  29. 

36— Out  See  29. 

37— Out  See  29. 

38— Out  See  29. 

39— Out  See  29. 

40— See  58. 

41— Out  See  58. 

42— Out  See  58. 

43— Out  See  58. 

44— Out  See  58. 

45— Out  See  31. 

46—32*  with  time  changed. 

47—39. 


Old  New 

48—38. 

49—37. 

50—41* 

51—42* 

52—43. 

53—44. 

54—40. 

55—  Out  See  73. 

56—45. 

57—34. 

58—35* 

59—36. 

60—  Out  See  19  and  30. 

61—  Abolished  33  and  21. 

62—  Out. 

63—  Out  See  33. 

64—  Out  See  33  and  part  58. 

65—  Out. 

66—  Abolished  31. 

67—  See  58  and  46-49-51-52-53-47. 
68—54. 

69—55  and  47. 
70—47  and  54. 

71—  Out. 

72—  Out  See  30. 

73—  Out. 
74—59. 
75—60* 
76—61* 
77—62. 

78—52  See  46. 
79—63. 
80—64* 
81—65* 

8"2—  68. 

83  —  66* 

84—67. 

85—72. 

86—71* 

87—70* 

88—69. 

89—79. 

90—  Out  See  79. 

91—78* 

92—10*  substantially. 

93—74. 

94—27. 


with  time  changed. 


880 


APPENDIX 


CORRESPONDING  TABLE  OF  NEW  RULES  SHOWING  FROM  WHERE 
DRAWN  IN  THE  OLD  RULES  AND  WHAT  ARE  ENTIRELY  NEW. 
THOSE  MARKED  WITH  A  STAR  ARE  IDENTICAL.  WITH  THE 
OLD  RULE. 


New     Old 
Par.  1—1-1. 
Par.  2—1-3. 

2—  2. 

3 —  new.  See  4. 
4 4 

5—  5. 

6 —  new. 

7 —  7*   substantially. 

8 —  pt.   new.    8. 

9—  9* 

10—92*  substantially. 

11—10*  substantially. 

12—11  and  12. 

13—13* 

14 — 14*  substantially. 

15—15* 

16—18  first  part. 

1 7—19. 

1 8 — new. 

19—28,  29  and  60  supersedes  30. 

20— new. 

21— new.  See  26,  27,  61. 

22— new. 

23— new. 

24 — partly  new.     24. 

25 

Pur.  1—20. 

"      2—21. 

''      3,  new. 

"      4—22  pt. 

"      5— pt.  21  and  23. 
26— new. 
27—94. 

28—28  1st  pt.  29  1st  pt. 
29 — new  superseding  31  to  40. 
30 — new.    See  60.    Supersedes  72. 
31 — new  superseding  45  and  66. 
32 — 46*  with  time  changed. 
33 — new  superseding  61,  63,  64. 
34 — new  superseding  57. 
35—58* 
36—59. 

37 — new  superseding  49. 
38—48. 
39—47. 
40—54. 


New    Old 

41—50* 

42—51* 

43 — 52  and  pt.  new. 

44—53. 

45 — new  superseding  56. 

46— abolishing  67,  78. 

47— new,  pt.  67,  pt.  69,  pt.  70. 

48 — new. 

49 — new,  pt.  67. 

50 — new. 

51 — new — last  pt.   from   pt.   67. 

52— pt.  new.     78  1st  pt.  67  pt. 

53—67  pt. 

54 — 68  and  70  superseded. 

55 — new  superseding  69. 

56 — new. 

57 — new. 

58 — new  pt.  18  2nd  pt.     Supersedes 

40,  41,  42,  43,  44,  64,  67. 
59—74. 
60—75* 
61—76* 
62—77. 
63—79. 
64—80* 
65—81* 

66 — 83*  with  time  changed. 
67—84. 
68—82. 
69—88. 
70—87* 
71—86* 
72—85. 

73 — new  superseding  55. 
74—93. 
75 — new. 
76 — new. 
77 — new. 
78—91* 

79 — 89  supersedes  90. 
80— new. 
81 — new. 


EQUITY  RULES  IN  FORCE 

FEBRUARY  1,  1913,  ANNOTATED. 


EXPLANATORY  NOTE. 

Matter  contained  in  parentheses  followed  by  a  number  indicates  that  such  mat- 
ter is  the  same  as  the  old  rule  of  that  number  except  where  changes  are  indicated 
by  note  numbers  above  the  line  of  the  text  of  the  rule.  Thus  the  first  part  of 
rule  1  is  identical  with  old  rule  1  except  the  word  "district"  followed  by  note 
number  "1"  in  the  new  rule  was  "circuit"  in  old  rule  1.  The  second  part  of  rule 
1  in  parentheses  is  the  same  as  part  of  old  rule  3,  and  the  last  part  of  rule  1  in 
parentheses  is  new,  as  indicated  in  the  note  below. 

Rule  1.  District  court  always  open  for  certain  purposes — Orders  at  cham- 
bers. (The  district  1  court,  as  courts  of  equity,  shall  be  deemed  always  open 
for  the  purpose  of  filings  any  pleading,  of  issuing  and  returning  mesne  and 
final  process,  and  of  making  and  directing  all  interlocutory  motions,  orders, 
rules  and  other  proceedings  preparatory  to  the  hearing,  upon  their  merits,  of 
all  causes  pending  therein.)  (1.) 

(Any  district  judge  may,  upon  reasonable  notice  to  the  parties,  make,  direct, 
and  award,  at  chambers  or  in  the  clerk's  office,  and  in  vacation  as  well  as 
in  term,  all  such  process,  commissions,  orders,  rules  and  other  proceedings,) 
(pt.  3)  (whenever  the  same  are  not  grantable  of  course,  according  to  the 
rules  and  practice  of  the  court.)  (New.) 

1  Formerly  "circuit." 

2  Omits  "bills,  answers,  and  other." 

Drawn  from  old  rule  1,  Rose's  Code,  §  365,  and  part  of  old  rule  3,  Rose's 
Code,  §  939;  but  last  sentence  of  rule  is  new. 

The  rule  is  identical  with  §  9,  Judicial  Code,  except  omits  "admiralty  and" 
after  "district  courts,"  and  before  "as  courts  of  equity." 

Rule  2.  Clerk's  office  always  open,  except,  etc.  The  clerk's  office  shall  be 
open  during  business  hours  on  all  days,  except  Sundays  and  legal  holidays, 
and  the  clerk  shall  be  in  attendance  for  the  purpose  of  receiving  and  disposing 
of  all  motions,  rules,  orders  and  other  proceedings  which  are  grantable  of 

course. 

. 

Drawn  from  old  rule  2,  Rose's  Code,  §  604,  which  established  the  first 
Monday  in  the  month  as  rule  day.  Rule  day  is  now  abolished.  Motion  day 
is  provided  for  in  rule  6,  post. 

Rule  3.  Books  kept  by  clerk  and  entries  therein.  The  clerk  shall  keep  a 
book  known  as  "Equity  Docket,"  in  which  he  shall  enter  each  suit,  with  a  file 
number  corresponding  to  the  folio  in  the  book.  All  papers  and  orders  filed 
with  the  clerk  in  the  suit,  all  process  issued  and  returns  made  thereon,  and 
all  appearances,  shall  be  noted  briefly  and  chronologically  in  this  book  on 
the  folio  assigned  to  the  suit  and  shall  be  marked  with  its  file  number. 
Montg. — 56. 


882  APPENDIX 

The  clerk  shall  also  keep  a  book  entitled  "Order  Book,"  in  which  shall  be 
entered  at  length,  in  the  order  of  their  making,  all  orders  made  or  passed 
by  him  as  of  course  and  also  all  orders  made  or  passed  by  the  judge  in 
chambers. 

He  shall  also  keep  an  "Equity  Journal,"  in  which  shall  be  entered  all 
orders,  decrees  and  proceedings  of  the  court  in  equity  causes  in  term  time. 

Separate  and  suitable  indices  of  the  Equity  Docket,  Order  Book  and  Equity 
Journal  shall  be  kept  by  the  clerk  under  the  direction  of  the  court. 

New. — Old  rule  4  provided  for  an  "Order  Book."  Otherwise  this  is  a  new 
rule.  Supersedes  old  rule  16. 

Rule  4.  Notice  of  orders.  Neither  the  noting  of  an  order  in  the  Equity 
Docket  nor  its  entry  in  the  Order  Book  shall  of  itself  be  deemed  notice  to 
the  parties  or  their  solicitors;  and  when  an  order  is  made  without  prior 
notice  to,  and  in  the  absence  of,  a  party,  the  clerk,  unless  otherwise  directed 
by  the  court  or  judge,  shall  forthwith  send  a  copy  thereof,  by  mail,  to  such 
party  or  his  solicitor  and  a  note  of  such  mailing  shall  be  made  in  the  Equity 
Docket,  which  shall  be  taken  as  sufficient  proof  of  due  notice  of  the  order. 

New. — Superseding  old  rule  4,  which  provided  the  entry  in  the  Order  Book 
was  sufficient  notice"1  to  the  parties,  except  in  cases  where  personal  or  other 
notice  is  specially  required  or  directed.  The  part  as  to  mailing  copies  is  new. 

Rule  5.  Motions  grantable  of  course  by  clerk.  (All  motions  and  applica- 
tions in  the  clerk's  office  for  the  issuing  of  mesne  process  or  final  process  to 
enforce  and  execute  decrees;  1  for  taking  bills  pro  confesso;*  and  for  other 
proceedings  in  the  clerk's  office  which  do  not  3  require  any  allowance  or  order 
of  the  court  or  of  a  judge,  shall  be  deemed  motions  and  applications  grant- 
able  of  course  by  the  clerk;  but  the  same  may  be  suspended,  or  altered,  or 
rescinded  by  the  judge  *  upon  special  cause  shown.)  (5,  Rosens  Code,  §  942.) 

1  Omits   "for   filing  bills,   answers,   pleas,   demurrers   and   other   pleadings; 
for  making  amendments  to  bills  and  answers." 

2  Omits  "for  filing  exceptions." 

8  Omits  "by  the  rules  hereinafter  described." 
*  Omits  "of  the  court." 

Rule  6.  Motion  day.  Each  district  court  shall  establish  regular  times  and 
places,  not  less  than  once  each  iimntl).  when  motions  requiring  notice  and 
hearing  may  be  made  and  disposed  of;  but  the  judge  may  at  any  time  and 
place,  and  on  such  notice,  if  any,  as  he  may  consider  reasonable,  make  and 
direct  all  interlocutory  orders,  rulings  and  proceedings  for  the  advancement, 
conduct  and  hearing  of  causes.  If  the  public  interest  permits,  the  senior 
circuit  judge  of  the  circuit  may  dispense  with  the  motion  day  during  not 
to  exceed  two  months  in  the  year  in  any  district. 

New  rule  substituting  "motion  day"  for  the  abolished  "rule  day." 

Rule  7.  Process,  mesne  and  final.  (The  process  of  subpoena  shall  consti- 
tute the  proper  mesne  process  in  all  suits  in  equity,  in  the  first  instance, 
to  require  the  defendant  to  appear  and  answer  the  *  bill ;  and,  unless  other- 
wise provided  in  these  rules  or  specially  ordered  by  the  court,  a  writ  of  attach- 
ment and,  if  the  defendant  cannot  be  found,  a  writ  of  sequestration,  or  a 


EQUITY  BULES  883 

writ  of  assistance  to  enforce  a  delivery  of  possession,  as  the  case  may  require, 
shall  be  the  proper  process  to  issue  for  the  purpose  of  compelling  obedience 
^o  any  interlocutory  or  final  order  or  decree  of  the  court.)  (7.) 

1  Omits  "exigency  of." 

Rule  8.  Enforcement  of  final  decrees.  (Final  process  to  execute  any  de- 
cree may,  if  the  decree  be  solely  for  the  payment  of  money,  be  by  a  writ 
of  execution,  in  the  form  used  in  the  district  1  court  in  suits  at  common  law 
in  actions  of  assumpsit.  If  the  decree  be  for  the  performance  of  any  specific 
act,  as,  for  example,  for  the  execution  of  a  conveyance  of  land  or  the  de- 
livering up  of  deeds  or  other  documents,  the  decree  shall,  in  all  cases,  pre- 
scribe the  time  within  which  the  act  shall  be  done,  of  which  the  defendant 
shall  be  bound,  without  further  service,  to  take  notice;  and  upon  affidavit  of 
the  plaintiff,  filed  in  the  clerk's  office,  that  the  same  has  not  been  complied 
with  within  the  prescribed  time,  the  clerk  shall  issue  a  writ  of  attachment 
against  the  delinquent  party,  from  which,  if  attached  thereon,  he  shall  not 
be  discharged,  unless  upon  a  full  compliance  with  the  decree  and  the  pay- 
ment of  all  costs,  or  upon  a  special  order  of  the  court,  or  a  judge  thereof, 
upon  motion  and  affidavit,  enlarging  the  time  for  the  performance  thereof. 
If  tho  delinquent  party  cannot  be  found  a  writ  of  sequestration  shall  issue 
against  his  estate,  upon  the  return  of  non  est  inventus,  to  compel  obedience 
to  the  decree.)  (8.  Identical.  Rose's  Code,  §  1096.)  (If  a  mandatory  order, 
injunction  or  decree  for  the  specific  performance  of  any  act  or  contract  be 
not  complied  with,  the  court  or  a  judge,  besides,  or  instead  of,  proceedings 
against  the  disobedient  party  for  a  contempt  or  by  sequestration,  may  by 
order  direct  that  the  act  required  to  be  done,  be  done,  so  far  as  practicable, 
by  some  other  person  appointed  by  the  court  or  judge,  at  the  cost  of  the  dis- 
obedient party,  ^and  the  act,  when  so  done,  shall  have  like  effect  as  if  done 
by  him.)  (New.) 

1  Pircuit. 

Rule  9.  Writ  of  assistance.  (When  any  decree  or  order  is  for  the  delivery 
of  possession,  upon  proof  made  by  affidavit  of  a  demand  and  refusal  to  obey 
the  decree  or  order,  the  party  prosecuting  the  same  shall  be  entitled  to  a 
writ  of  assistance  from  the  clerk  of  the  court.)  (Identical  9.  Rose's  Code, 
§  1097.) 

Rule  10.  Decree  for  deficiency  in  foreclosures,  etc.  (In  suits  for  the  fore- 
closure of  mortgages,  or  the  enforcement  of  other  liens,  (new)  a  decree  may  be 
rendered  for  any  balance  that  may  be  found  due  to  the  plaintiff  over  and 
above  the  proceeds  of  the  sale  or  sales,  and  execution  may  issue  for  the 
collection  of  the  same,  as  is  provided  in  rule  8  when  the  decree  is  solely  for 
the  payment  of  money.)  (Substantially.  92.) 

Rule  11.  Process  in  behalf  of  and  against  persons  not  parties.  (Every  per- 
son, not  being  a  party  in  any  cause,  who  lias  obtained  an  order,  or  in  whose 
favor  an  order  shall  have  been  made,  may  enforce  obedience  to  such  order 
by  the  same  process  as  if  he  were  a  party;  and  every  person,  not  being  a  party, 


884  APPENDIX 

against  whom  obedience  to  any  order  of  the  court  may  be  enforced,  shall 
be  liable  to  the  same  process  for  enforcing  obedience  to  such  orders  as  if 
he  were  a  party.1)  (10.) 

1  The  last  three  words  of  the  old  rule  10,  Rose's  Code,  §  1098,  "in  the  cause," 
are  omitted. 

Rule  12.  Issue  of  subpoena — Time  for  answer.  (Whenever  a  bill  is  filed, 
and  not  before,  the  clerk  shall  issue  the  process  of  subpoena  thereon,)  (11.)  as 
of  course,  upon  the  application  of  the  plaintiff,  (which  shall  contain  the 
names  of  the  parties  and  be  returnable  into  the  clerk's  office  twenty  days 
from  the  issuing  thereof.)  (New.)  (At  the  bottom  of  the  subpoena  shall  be 
placed  a  memorandum,  that  the  defendant  is  required  to  file  his  answer  or 
other  defense  in  the  clerk's  office  on  or  before  the  twentieth  day  after  service, 
excluding  the  day  thereof;  otherwise  the  bill  may  be  taken  pro  confesso.  Where 
there  are  more  than  one  defendant,  a  writ  of  subpoena  may,  at  the  election 
of  the  plaintiff,  be  sued  out  separately  for  each  defendant,  or  a  joint  sub- 
poena against  all  the  defendants.)  (12.) 

This  rule  combines  old  rules  11  and  12,  see  Rose's  Code,  §§  969,  970,  the 
time  for  answering  is  changed  because  of  the  abolition  of  the  rule  day.  Ap- 
pearance day  is  abolished. 

Rule  13.  Manner  of  serving  subpoena.  (The  service  of  all  subpoenas  shall 
be  by  delivering  a  copy  thereof  to  the  defendant  personally,  or  by  leaving  a 
copy  thereof  at  the  dwelling  house  or  usual  place  of  abode  of  each  defendant, 
with  some  adult  person  who  is  a  member  of  or  resident  in  the  family.) 
(13.  Identical.) 

Rule  14.  Alias  subpoena.  (Whenever  any  subpoena  shall  be  returned  not 
executed  as  to  any  defendant,  the  plaintiff  shall  be  entitled  to  other  1  sub- 
poenas 2  against  such  defendant,  until  due  service  is  made.)  (14,  Rose's  Code, 
§  972.) 

1  Changed  from  "another" 

2  Omits  "toties  quoties." 

Rule  15.  Process,  by  whom  served.  (The  service  of  all  process,  mesne  and 
final,  shall  be  by  the  marshal  of  the  district,  or  his  deputy,  or  by  some  other 
person  specially  appointed  by  the  court  or  judge  for  that  purpose,  and  not 
otherwise.  In  the  latter  case,  the  person  serving  the  process  shall  make 
affidavit  thereof.)  (Identical  15,  Rose's  Code,  §  973.) 

Rule  16.  Defendant  to  answer — Default — Decree  pro  confesso.  (It  shall  be 
the  duty  of  the  defendant,  unless  the  time  shall  be  enlarged,  for  cause  shown, 
by  a  judge  of  the  court,!  to  file  his  answers  or  other  defense  (new)  to  the 
bill  in  the  clerk's  office  within  the  time  named  in  the  subpoena  as  required  by 
rule  12.*  In  default  thereof  the  plaintiff  may,  at  his  election,  take  an  order 


EQUITY   RULES  885 

os  of  course  *  that  the  bill  be  taken  pro  confesso;  and  thereupon  the  cause  shall 
be  proceeded  in  ex  parte.)       (1st  pt.  18,  Rose's  Code,  §  977.) 

1  Omits  "on  motion  for  that  purpose." 

2  Omits   "plea,  demurrer." 

3  Changes  "on  the  rule  next  succeeding  that  of  his  appearance." 

4  Omits    ''enter  an  order     ...     in   the   Order   Book." 

Rule  17.  Decree  pro  confesso  to  be  followed  by  final  decree — Setting  aside 
default.  (When  the  bill  is  taken  pro  confesso  the  court  may  proceed  to  a  final 
(new)  decre^  at  any  time  after  the  expiration  of  thirty  days  after  the  entry 
of  the  order  I,  pro  confesso,  and  such  decree  2  shall  be  deemed  absolute,  unless 
the  court  sha/ll,  at  the  same  term,  set  aside  the  same,  or  enlarge  the  time 
for  filing  the  Answer,  upon  cause  shown  upon  motion  and  affidavit.3  No  such 
motion  shall  be  granted,  unless  upon  the  payment  of  the  costs  of  the  plaintiff  * 
up  to  that  time,  or  such  part  thereof  as  the  court  shall  deem  reasonable,  and 
unless  the  defendant  shall  undertake  to  file  his  answer  within  such  time  as 
the  court  shall  direct,  and  submit  to  such  other  terms  as  the  court  shall 
direct  for  the  purpose  of  speeding  the  cause.)  (19,  Roses'  Code,  §  978.) 

1  To  take  the  bill. 

2  Rendered 

3  Of  the  defendant. 

4  In  the  suit 

Rule  18.  Pleadings — Technical  forms  abrogated.  Unless  otherwise  pre- 
scribed by  statute  or  these  rules  the  technical  forms  of  pleadings  in  equity 
are  abolished. 

New. 

Rule  19.  Amendments  generally.  The  court  may  at  any  time,  in  further- 
ance of  justice,  upon  such  terms  as  may  be  just,  permit  any  process,  pro- 
ceeding, pleading  or  record  to  be  amended,  or  material  supplemental  matter 
to  be  set  forth  in  an  amended  or  supplemental  pleading.  The  court,  at 
every  stage  of  the  proceeding,  must  disregard  any  error  or  defect  in  the  pro- 
ceedings which  does  not  affect  the  substantial  rights  of  the  parties.  (28, 
29.  60,  Rose's  Code,  §§  956,  957.) 

See  rule  28,  post. 

Drawn  from  old  rules  28,  29,  and  60,  which  it  supersedes.  It  also  supersedes 
old  rule  30. 

Rule  20.  Further  and  particular  statement  in  pleading  may  be  required. 
A  further  and  better  statement  of  the  nature  of  the  claim  or  defense,  or 
further  and  better  particulars  of  any  matter  stated  in  any  pleading,  may  in 
any  case  be  ordered,  upon  such  terms,  as  to  costs  and  otherwise,  as  may  be 
just. 

New  rule,  drawn  from  order  XIX,  rule  7,  English  chancery  practice. 
As   to   object   of   particulars,   see   Speeding   v.   Fitzpatrick,   38   C.   D.   413; 
Milbank  v.  Milbank,  1  Ch.  285. 


886  APPENDIX 

Rule  21.  Scandal  and  impertinence.  The  right  to  except  to  bills,  answers, 
and  other  procedings  for  scandal  or  impertinence  shall  not  obtain,  but  the 
court  may,  upon  motion  or  its  own  initiative,  order  any  redundant,  imperti- 
nent or  scandalous  matter  striken  out,  upon  such  terms  as  the  court  shall  think 
fit. 

This  is  a  new  rule,  and  abolishes  the  practice  of  taking  exceptions  for 
scandal  and  impertinence  under  old  rules,  26,  27,  61,  Rose's  Code,  §  954. 
See  Rule  33,  post. 

Rule  22.  Action  at  law  erroneously  begun  as  suit  in  equity — Transfer.  If 
at  any  time  it  appear  that  a  suit  commenced  in  equity  should  have  been 
brought  as  an  action  on  the  law  side  of  the  court,  it  shall  be  forthwith 
transferred  to  the  law  side  and  be  there  proceeded  with,  with  only  such 
alteration  in  the  pleadings  as  shall  be  essential. 

New.    Same  as  English  practice  under  judicature  act  1875. 

Rule  23.  Matters  ordinarily  determinable  at  law,  when  arising  in  suit  in 
equity  to  be  disposed  of  therein.  If  in  a  suit  in  equity  a  matter  ordinarily 
determinable  at  law  arises,  such  matter  shall  be  determined  in  that  suit 
according  to  the  principles  applicable,  without  sending  the  case  or  question 
to  the  law  side  of  the  court. 

New. 

Rule  24.  Signature  of  counsel.  Every  bill  or  other  pleading  shall  be  signed 
individually  by  one  or  more  solicitors  of  record,  and  such  signatures  shall 
be  considered  as  a  certificate  by  each  solicitor  that  he  has  read  the 
pleading  so  signed  by  him;  that  upon  the  instructions  laid  before  him 
regarding  the  case  there  is  good  ground  for  the  same;  that  no  scandalous 
matter  is  inserted  in  the  pleading;  and  that  it  is  not  interposed  for  delay. 
(24.  Partly  New.  Rose's  Code,  §  949.) 

Rule  25.  Bill  of  complaint — Contents.  Hereafter  it  shall  be  sufficient  that 
a  bill  in  equity  shall  contain,  in  addition  to  the  usual  caption: 

First,  (the  full  name,  when  known,  of  each  plaintiff  and  defendant,  and 
the  citizenship,  and  residence  of  each  party.  If  any  party  be  under  any 
disability  that  fact  shall  be  stated.)  (From  20,  Rose's  Code,  §  944.) 

Second,  (a  short  and  plain  statement  of  the  grounds  upon  which  the 
court's  jurisdiction  depends.)  (From  21,  Rose's  Code,  §§  945,  946.) 

Third,  (a  short  and  simple  statement  of  the  ultimate  facts  upon  which 
the  plaintiff  asks  relief,  omitting  any  mere  statement  of  evidence.)  (New.) 

Fourth,  (if  there  are  persons  other  than  those  named  as  defendants  who 
appear  to  be  proper  parties,  the  bill  should  state  why  they  ai"«  not  made 
parties — as  that  they  are  not  within  the  jurisdiction  of  the  court,  or  can- 
not be  made  parties  without  ousting  the  jurisdiction.)  (22.  Partly,  Rose's 
Code,  §  947.) 

Fifth,  a  statement  of  and  prayer  for  any  special  relief  pending  the   suit 


EQUITY  RULES  887 

or  on  final  hearing,  which  may  be  stated  and  sought  in  alternative  forms. 
If  special  relief  pending  the  suit  be  desired  the  bill  should  be  verified 
-by  the  oath  of  the  plaintiff,  or  someone  having  knowledge  of  the  facts 
upon  which  such  relief  is  asked.  (From  last  pt.  21  and  23,  Rose's  Code, 
§§  945,  946,  948.) 

Rule  26.  Joinder  of  causes  of  action.  The  plaintiff  may  join  in  one  bill 
as  many  causes  of  action,  cognizable  in  equity,  as  he  may  have  against 
the  defendant.  But  when  there  is  more  than  one  plaintiff,  the  causes  of 
action  joined  must  be  joint,  and  if  there  be  more  than  one  defendant  the 
liability  must  be  one  asserted  against  all  of  the  material  defendants,  or 
sufficient  grounds  must  appear  for  uniting  the  causes  of  action  in  order 
to  promote  the  convenient  administration  of  justice.  If  it  appear  that  any 
such  cause  of  action  cannot  be  conveniently  disposed  of  together,  the  court 
may  order  separate  trials. 

New. 

Rule  27.  Stockholder's  bill.  Every  bill  brought  by  one  or  more  stock- 
holders in  a  corporation  against  the  corporation  and  other  parties,  founded 
on  rights  which  may  properly  be  asserted  by  the  corporation,  must  be 
verified  by  oath,  and  must  contain  an  allegation  that  the  plaintiff  was  a 
shareholder  at  the  time  of  the  transaction  of  which  he  complains,  or  that 
his  share  had  devolved  on  him  since  by  operation  of  law,  and  that  the 
suit  is  not  a  collusive  one  to  confer  on  a  court  of  the  United  States  juris- 
diction of  a  case  of  which  it  would  not  otherwise  have  cognizance.  It 
must  also  set  forth  with  particularity  the  efforts  of  the  plaintiff  to  secure 
such  action  as  he  desires  on  the  part  of  the  managing  directors  or  trustees, 
and,  if  necessary,  of  the  share  holders,  and  the  causes  of  his  failure  to 
obtain  such  action,)  (94)  or  the  reasons  for  not  making  such  effort. 

New. 

Rule  28.  Amendment  of  bill  as  of  course.  (The  plaintiff  may,  as  of 
course,  amend  his  bill  before  the  defendant  has  responded  thereto,  but  if 
such  amendment  be  filed  after  any  copy  has  issued  from  the  clerk's  office, 
the  plaintiff  at  his  own  cost  shall  furnish  to  the  solicitor  of  record  of 
each  opposing  party  a  copy  of  the  '  bill  as  amended,  unless  otherwise 
ordered  by  the  court  or  judge.)  (From  28,  1st  part.)  Rose's  Code,  §  956. 

After  pleading  filed  by  any  defendant,  plaintiff  may  amend  only  by  con- 
sent of  the  defendant  or  leave  of  the  court  or  judge.  (From  29,  1st  part, 
Rose's  Code,  §  957.) 

This  rule,  with  rule  18  above,  makes  several  changes  in  the  practice  as 
to  amendments. 

Rule  29.  Defenses — How  presented.  Demurrers  and  pleas  are  abolished. 
Every  defense  in  point  of  law  arising  upon  the  face  of  the  bill,  whether  for 
misjoinder,  nonjoinder,  or  insufficiency  of  fact  to  constitute  a  valid  cause 
of  action  in  equity,  which  might  heretofore  have  been  made  by  demurrer 
or  plea,  shall  be  made  by  motion  to  dismiss  or  in  the  answer;  and  every 


888  APPENDIX 

such  point  of  law  going  to  the  whole  or  a  material  part  of  the  cause  or 
causes  of  action  stated  in  the  bill  may  be  called  up  and  disposed  of  before 
final  hearing  at  the  discretion  of  the  court.  Every  defense  heretofore  pre- 
sentable by  plea  in  bar  or  abatement  shall  be  made  in  the  answer  and  may 
be  separately  heard  and  disposed  of  before  the  trial  of  the  principal  case 
in  the  discretion  of  the  court.  If  the  defendant  move  to  dismiss  the  bill 
or  any  part  thereof,  the  motion  may  be  set  down  for  hearing  by  either 
party  upon  five  days'  notice,  and,  if  it  be  denied,  answer  shall  be  filed 
within  five  days  thereafter  or  a  decree  pro  confesso  entered. 

New. 

Does  away  with  old  rules  3  to  39  inclusive. 

Rule  30.  Answer — Contents — Counterclaim.  The  defendant  in  his  answer 
shall  in  short  and  simple  terms  set  out  his  defense  to  each  claim  asserted 
by  the  bill,  omitting  any  mere  statement  of  evidence  and  avoiding  any 
general  denial  of  the  averments  of  the  bill,  but  specifically  admitting  or 
denying  or  explaining  the  facts  upon  which  the  plaintiff  relies,  unless  the 
defendant  is  without  knowledge,  in  which  case  he  shall  so  state,  such  state- 
ment operating  as  a  denial.  Averments  other  than  of  value  or  amount  of 
damage,  if  not  denied,  shall  be  deemed  confessed,  except  as  against  an 
infant,  lunatic  or  other  person  non  compos  and  not  under  guardianship, 
but  the  answer  may  be  amended,  by  leave  of  the  court  or  judge,  upon 
reasonable  notice,  so  as  to  put  any  averment  in  issue,  when  justice  requires 
it.  The  answer  may  state  as  many  defenses,  in  the  alternative,  regardless 
of  consistency,  as 'the  defendant  deems  essential  to  his  defense. 

The  answer  must  state  in  short  and  simple  form  any  counterclaim  arising 
out  of  the  transaction  which  is  the  subject  matter  of  the  suit,  and  may. 
without  cross-bill,  set  out  any  set-off  or  counterclaim  against  the  plaintiff 
which  might  be  the  subject  of  an  independent  suit  in  equity  against  him, 
and  such  set-off  or  counterclaim,  so  set  up,  shall  have  the  same  effect  as  a 
cross-bill,  so  as  to  enable  the  court  to  pronounce  a  final  judgment  in  the 
same  suit  both  on  the  original  and  cross-claims.  New.  Supersedes  old  rules 
60  and  72.  Rose's  Code,  §  1053. 

Rule  31.  Reply — When  required — When  cause  at  issue.  Unless  the  an- 
swer assert  a  set-off  or  counterclaim,  no  reply  shall  be  required  without 
special  order  of  the  court  of  judge,  but  the  cause  shall  be  deemed  at  issue 
upon  the  filing  of  the  answer,  and  any  new  or  affirmative  matter  therein 
shall  be  deemed  to  be  denied  by  the  plaintiff.  If  the  answer  include  a  set- 
off  or  counterclaim  the  party  against  whom  it  is  asserted  shall  reply  within 
ten  days  after  the  filing  of  the  answer,  unless  a  longer  time  be  allowed 
by  the  court  or  judge.  If  the  counterclaim  is  one  which  affects  the  rights 
of  other  defendants  they  or  their  solicitors  shall  be  served  with  a  copy  of 
the  same  within  ten  days  from  the  filing  thereof,  and  ten  days  shall  be  ac- 
corded to  such  defendants  for  filing  a  reply.  In  default  of  a  reply,  a  decree 
pro  confesso  on  the  counterclaim  may  be  entered  as  in  default  of  an  answer  to 
the  bill. 

New.     Supersedes  old  rules  45  and  66. 


EQUITY  RULES  889 

Rule  32.  Answer  to  amended  bill.  (In  every  case  where  an  amendment 
to  the  bill  shall  be  made  after  answer  filed,  the  defendant  shall  put  in  a 
new  or  supplemental  answer  ivithin  ten  days  (new)  after  that  on  which 
the  amendment  or  amended  bill  is  filed,  unless  the  time  is  enlarged  or 
otherwise  ordered  by  a  judge  of  the  court;  and  upon  his  default,  tUe  like 
proceedings  may  be  had  as  in  case  of  an  omission  to  put  in  an  answer.) 
(46,  Rose's  Code,  §  1007.) 

Rule  day  being  abolished,  the  only  change  of  language  in  old  rule  46  was 
that  defining  time. 

Rule  33.  Testing  sufficiency  of  defense.  Exceptions  for  insufficiency  of  an 
answer  are  abolished.  But  if  an  answer  set  up  an  affirmative  defense,  set- 
off  Or  counterclaim,  the  plaintiff  may,  upon  five  days'  notice,  or  such 
further  time  as  the  court  may  allow,  test  the  sufficiency  of  the  same  by 
motion  to  strike  out.  If  found  insufficient  but  amendable  the  court  may 
allow  an  amendment  upon  terms,  or  strike  out  the  matter. 

New,  superseding  old  rules  61,  63,  64. 

Rule  34.  Supplemental  pleading.  (Upon  application  of  either  party  the 
court  or  judge,  may,  upon  reasonable  notice  and  such  terms  as  are  just, 
permit  him  to  file  and  serve  a  supplemental  pleading,  alleging  material 
facts  occurring  after  his  former  pleading,  or  of  which  he  was  ignorant  when 
it  was  made,  including  the  judgment  or  decree  of  a  competent  court  ren- 
dered after  the  commencement  of  the  suit  determining  the  matters  in  con- 
troversy or  a  part  thereof.)  (New.) 

New.     See  old  rule  57.     Rose's  Code,  §  961. 

Rule  35.  Bills  of  reviver  and  supplemental  bills — Form.  (It  shall  not  be 
necessary  in  any  bill  of  reviver  or  supplemental  bill  to  set  forth  any  of  the 
statements  in  the  original  suit,  unless  the  special  circumstances  of  the 
case  may  require  it.)  (58.  Identical,  Rose's  Code,  §  962.) 

Rule  36.  Officers  before  whom  pleadings  verified.  Every  pleading  which 
is  required  to  be  sworn  to  by  statute,  or  these  rules,  may  be  verified  (before 
any  justice  or  judge  of  any  court  of  the  United  States,  or  of  any  state 
or  territory,  or  of  the  District  of  Columbia,  or  any  clerk  of  any  court  of 
the  United  States,  or  of  any  territory,  or  of  the  District  of  Columbia,  or 
any  notary  public.)  (59.  Omitting  commissioners  and  masters  in  chan- 
cery. ) 

Rule  37.  Parties  generally — Intervention.  Every  action  shall  be  prose- 
cuted in  the  name  of  the  real  party  in  interest,  but  an  executor,  administra- 
tor, guardian,  trustee  of  an  express  trust,  a  party  with  whom  or  in  whose 
name  a  contract  has  been  made  for  the  benefit  of  another,  or  a  party  ex- 
pressly authorized  by  statute,  may  sue  in  his  own  name  without  joining 


890  APPENDIX 

with  him  the  party  for  whose  benefit  the  action  is  brought.  All  persons 
having  an  interest  in  the  subject  of  the  action  and  in  obtaining  the  relief  de- 
manded may  join  as  plaintiffs,  and  any  person  may  be  made  a  defendant 
who  has  or  claims  an  interest  adverse  to  the  plaintiff.  Any  person  may  at 
any  time  be  made  a  party  if  his  presence  is  necessary  or  proper  to  a  com- 
plete determination  of  the  cause.  Persons  having  a  united  interest  must  be 
joined  on  the  same  side  as  plaintiffs  or  defendants,  but  when  anyone  refuses 
to  join,  he  may  for  such  reason  be  made  a  defendant. 

Anyone  claiming  an  interest  in  the  litigation  may  at  any  time  be  per- 
mitted to  assert  his  right  by  intervention,  but  the  intervention  shall  be  in 
subordination  to,  and  in  recognition  of,  the  propriety  of  the  main  proceed- 
ing. 

Xew,  superseding  49. 

Rule  38.  Representatives  of  class.  When  the  question  is  one  of  common 
or  general  interest  to  many  persons  constituting  a  class  so  numerous  as  to 
make  it  impracticable  to  bring  them  all  before  the  court,  one  or  more  may 
sue  or  defend  for  the  whole. 

This  is  a  new  rule,  drawn  from  old  rule  48.  Coann  v.  Atlanta  Factory 
Co.  14  Fed.  Rep.  4;  American  Steel  Co.  v.  Wire  Drawers'  Unioii,  90  Fed.  598. 

Rule  39.  Absence  of  persons  who  would  be  proper  parties.  (In  all  cases 
where  it  shall  appear  to  the  court  that  persons,  who  might  otherwise  be 
deemed  1  proper  parties  to  the  suit,  cannot  be  made  parties  by  reason  of  their 
being  out  of  the  jurisdiction  of  the  court,  or  incapable  otherwise  of  being 
made  parties,  or  because  their  joinder  would  oust  the  jurisdiction  of  the 
court  as  to  the  parties  before  the  court,  the  court  may,  in  its  discretion, 
proceed  in  the  cause  without  making  such  persons  parties;  and  in  such  cases 
the  decree  shall  be  without  prejudice  to  the  rights  of  the  absent  parties.) 
(47,  Rose's  Code,  §  1019. 

1  Omits  "necessary  or." 
See  §  50,  Judicial  Code. 

Rule  40.  Nominal  parties.  (Where  no  account,  payment,  conveyance,  or 
other  direct  relief  is  sought  against  a  party  to  a  suit,  not  being  an  infant, 
the  party,  upon  service  of  the  subprena  upon  him,  need  not  appear  and  an- 
swer the  bill,  unless  the  plaintiff  specially  requires  him  to  do  so  bv  the 
prayer,!  but  he  may  appear  and  answer  at  his  option;  and  if  he  does  not  ap- 
pear and  answer  he  shall  be  bound  by  all  the  proceedings  in  the  cause.  If 
the  plaintiff  shall  require  him  to  appear  and  answer  he  shall  be  entitled  to  the 
costs  of  all  the  proceedings  against  him,  unless  the  court  shall  otherwise 
direct.)  (54,  Rose's  Code,  §  976. 

i  Omits  "of  his  bill." 

Rule  41.  Suit  to  execute  trusts  of  will— Heir  as  party.  (In  suits  to  exe- 
cute the  trusts  of  a  will,  it  shall  not  be  necessary  to  make  the  heir  at  law  a 


EQUITY  RULES  891 

party;  but  the  plaintiff  shall  be  at  liberty  to  make  the  heir  at  law  a  party 
where  he  desires  to  have  the  will  established  against  him.)  (50  Identical, 
Eose's  Code,  §  1022.) 

Rule  42.  Joint  and  several  demands.  (In  all  cases  in  which  the  plaintiff 
has  a  joint  and  several  demand  against  several  persons,  either  as  principals 
or  sureties,  it  shall  not  be  necessary  to  bring  before  the  court  as  parties  to  a 
suit  concerning  such  demand  all  the  persons  liable  thereto;  but  the  plaintiff 
may  proceed  against  one  or  more  of  the  persons  severally  liable.  (51. 
Identical,  Rose's  Code,  §  1023.) 

Rule  43.  Defect  of  parties — Resisting  objection.  (Where  the  defendant 
shall  by  his  answer  suggest  that  the  bill  of  complaint  is  defective  for  want 
of  parties,  the  plaintiff  may,*  within  fourteen  days  after  answer  filed,  set 
down  the  cause  for  argument  as  a  motion  upon  that  objection  only,2  and 
where  the  plaintiff  shall  not  so  set  down  his  cause,  but  shall  proceed  there- 
with to  a  hearing,  notwithstanding  an  objection  for  want  of  parties  taken 
by  the  answer,  he  shall  not  at  the  hearing  of  the  cause,  if  the  defendant's 
objection  shall  then  be  allowed,  be  entitled  as  of  course  to  an  order  8  to 
amend  his  bill  by  adding  parties ;  but  the  court  *  shall  be  at  liberty  to  dis- 
miss the  bill,)  (52,  Rose's  Code,  §  1025.)  (or  to  allow  an  amendment  on  such 
terms  as  justice  may  require.)  (New.) 

1  Omitted  words,  "shall  be  at  liberty." 

2  "And  the  purpose  for  which  the  same  is  set  down  shall  be  notified  by  an 
entry,  to  be  made  in  the  clerk's  Order  Book  in  form  or  to  the  effect  following 
(that  is  to  say)  :  'Set  down  on  the  defendant's  objection  for  want  of  parties.'" 

3  "for  liberty." 

4  "if  it  thinks  fit." 

Rule  44.  Defect  of  parties — Tardy  objection.  (If  a  defendant  shall,  at  the 
hearing  of  a  cause,  object  that  a  suit  is  defective  for  want  of  parties,  not 
having  by  1  motion  or  answer  taken  the  objection  and  therein  specified  by 
name  or  description  the  parties  to  whom  the  objection  applies,  the  court 
shall  2  be  at  liberty  to  make  a  decree  saving  the  rights  of  the  absent  par- 
ties.) (53,  Rose's  Code  1026.) 

1  Word  "motion"  substituted  for  "plea  or  answer." 

2  "(if  it  shall  think  fit)"  omitted. 

Rule  45.  Death  of  party— Reviver.  In  the  event  of  the  death  of  either 
party  the  court  may,  in  a  proper  case,  upon  motion,  order  the  suit  to  be  re- 
vived by  the  substitution  of  the  proper  parties.  If  the  successors  or  repre- 
sentatives of  the  deceased  party  fail  to  make  such  application  within  a  rea- 
sonable time,  then  any  other  party  may,  on  motion,  apply  for  such  relief,  and 
the  court,  upon  any  such  motion,  may  make  the  necessary  orders  for  notice 
to  the  parties  to  be  substituted  and  for  the  filing  of  such  pleadings  or  amend- 
ments as  may  be  necessary. 

New,  superseding  56. 


892  APPENDIX 

Rule  46.  Trial— Testimony  usually  taken  in  open  court— Rulings  on  objec- 
tions to  evidence.  In  all  trials  in  equity  the  testimony  of  witnesses  shall  be 
taken  orally  in  open  court,  except  as  otherwise  provided  by  statute  or  these 
rules.  The  court  shall  pass  upon  the  admissibility  of  all  evidence  offered  as 
in  actions  at  law.  When  evidence  is  offered  and  excluded,  and  the  party 
against  whom  the  ruling  is  made  excepts  thereto  at  the  time,  the  court  shall 
take  and  report  so  much  thereof,  or  make  such  a  statement  respecting  it,  as 
will  clearly  show  the  character  of  the  evidence,  the  form  in  which  it  was 
offered,  the  objection  made,  the  ruling,  and  the  exception.  If  the  appellate 
court  shall  be  of  opinion  that  the  evidence  should  have  been  admitted,  it 
shall  not  reverse  the  decree  unless  it  be  clearly  of  opinion  that  material  preju- 
dice will  result  from  an  aiCrmance,  in  which  event  it  shall  direct  such  fur- 
ther steps  as  justice  may  require. 

Xew,  abolishing  the  practice  under  67. 

Rule  47.  Depositions — To  be  taken  in  exceptional  instances.  The  court, 
upon  application  of  either  party,  when  allowed  by  statute,1  or  for  good  and 
exceptional  cause  for  departing  from  the  general  rule,  to  be  shown  by  affi- 
davit, may  permit  the  deposition  of  named  witnesses,  to  be  used  before  the 
court  or  upon  a  reference  to  a  master,  to  be  taken  before  an  examiner  or  other 
named  officer,  upon  the  notice  and  terms  specified  in  the  order.  All  depo- 
sitions taken  under  a  statute,  or  under  any  such  order  of  the  court,  shall  be 
taken  and  filed  as  follows,  unless  otherwise  ordered  by  the  court  or  judge  for 
good  cause  shown:  Those  of  the  plaintiff  within  sixty  days  from  the  time 
the  cause  is  at  issue;  those  of  the  defendant  within  thirty  days  from  the  ex- 
piration of  the  time  for  the  filing  of  plaintiff's  depositions;  and  rebutting  de- 
positions by  either  party  within  twenty  days  after  the  time  for  taking  origi- 
nal depositions  expires. 

Xew.  See  last  paragraph  under  67,  headed  "Court  may  assign  the  time," 
69,  and  70. 

1  See  rule  54,  post. 

Rule  48.  Testimony  of  expert  witnesses  in  patent  and  trademark  cases. 
In  a  case  involving  the  validity  or  scope  of  a  patent  or  trademark,  the 
district  court  may,  upon  petition,  order  that  the  testimony  in  chief  of  expert 
witnesses,  whose  testimony  is  directed  to  matters  of  opinion,  be  set  forth 
in  affidavits  and  filed  as  follows:  Those  of  the  plaintiff  within  forty  daya 
after  the  cause  is  at  issue;  those  of  the  defendant  within  twenty  days  after 
plaintiff's  time  has  expired;  and  rebutting  affidavits  within  fifteen  days 
after  the  expiration  of  the  time  for  filing  original  affidavits.  Should  the 
opposite  party  desire  the  production  of  any  affiant  for  cross-examination, 
the  court  or  judge  shall,  on  motion,  direct  that  said  cross-examination  and 
any  re-examination  take  place  before  the  court  upon  the  trial,  and  unless  the 
affiant  is  produced  and  submits  to  cross-examination  in  compliance  with 
such  direction,  his  affidavit  shall  not  be  used  as  evidence  in  the  cause. 

Xew.     The  probabilities  are  that  this  rule  will  make  little  change  in  patent 


EQUITY   RULES 

and  trademark  cases,  and  that  rule  46  will  not  be  applied  to  these  cases. 
Probably  testimony  will  be  largely  taken  as  formerly,  by  resort  to  the  first 
clause  in  rule  47,  allowing  depositions  to  be  taken  "for  good  and  exceptional 
cause." 

Rule  49.  Evidence  taken  before  examiners,  etc.  All  evidence  offered  before 
an  examiner  or  like  officer,  together  with  any  objections,  shall  be  saved  and 
returned  into  the  court.  Depositions,  whether  upon  oral  examination  before 
an  examiner  or  like  officer  or  otherwise,  shall  be  taken  upon  questions  and 
answers  reduced  to  writing,  or  in  the  form  of  narrative,  and  the  witness 
shall  be  subject  to  cross  and  re-examination. 

New.     See  67,  under  heading  "Proceedings." 

Rule  50.  Stenographer—  Appointment  —  Fees.  When  deemed  necessary  by 
the  court  or  officer  taking  testimony,  a  stenographer  may  be  appointed  who 
shall  take  down  testimony  in  shorthand  and,  if  required,  transcribe  the  same. 
His  fee  shall  be  fixed  by  the  court  and  taxed  ultimately  as  costs.  The 
expense  of  taking  a  deposition,  or  the  cost  of  a  transcript,  shall  be  advanced 
by  the  party  calling  the  witness  or  ordering  the  transcript. 

New. 

Rule  51.  Evidence  taken  before  examiners,  etc.  Objections  to  the  evi- 
dence, before  an  examiner  or  like  officer,  shall  be  in  short  form,  stating  the 
grounds  of  objection  relied  upon,  but  no  transcript  filed  by  such  officer 
shall  include  argument  or  debate.  The  testimony  of  each  witness,  after 
being  reduced  to  writing,  (shall  be  read  over  to  or  by  him,!  and  shall  be 
signed  by  him  in  the  presence  of  the  officer:  2  Provided,  That  if  the  witness 
shall  refuse  to  sign  his  3  deposition  so  taken,  the  officer  *  shall  sign  the 
same,  stating  upon  the  record  the  reasons,  if  any,  assigned  by  the  witness 
for  such  refusal.5  Objection  to  any  question  or  questions  shall  be  noted 
by  the  officer  upon  the  deposition,  but  he  shall  not  have  power  to  decide  on 
the  competency  or  materiality  or  relevancy  of  the  questions.  The  court 
shall  have  power,  and  it  shall  be  its  duty,  to  deal  with  the  costs  of  in- 
competent and  immaterial  or  irrelevant  depositions,  or  parts  of  them,  as 
may  be  just. 

Substantially  67,  last  pt.,  under  heading  "Proceedings." 


,"  for  "the  witness." 

*  "Officer"  instead  of  "of  the  parties  or  counsel,  or  such  of  them  as  may 
attend." 

3  "His"  instead  of  "the  said" 

*  "Officer"  for  "examiner" 

5  Omitted  "and  the  examiner  may  upon  all  examinations  state  any  special 
matters  to  the  court  as  he  shall  see  fit." 

Rule  52.  Attendance  of  witnesses  before  commissioner,  master  or  examiner. 
(Witnesses  who  live  within  the  district,  and  whose  testimony  may  be  taken 
out  of  court  by  these  rules,  (new)  may  be  summoned  to  appear  before  a 
commissioner  appointed  to  take  testimony,  or  before  a  master  or  examiner 
appointed  in  any  cause,  by  subpo?na  in  the  usual  form,  which  may  be  issued 


894  APPENDIX 

by  the  clerk  in  blank  and  filled  up  by  the  party  praying  the  same,  or  by 
the  commissioner,  master,  or  examiner,  requiring  the  attendance  of  the 
witnesses  at  the  time  and  place  specified,  who  shall  be  allowed  for  attend- 
ance the  same  compensation  as  for  attendance  in  court;  and  if  any  witness 
shall  refuse  to  appear  or  give  evidence  it  shall  be  deemed  a  contempt  of 
the  court,  which  being  certified-  to  the  clerk's  office  by  the  commissioner, 
master,  or  examiner,  an  attachment  may  issue  thereupon  by  order  of  the 
court  or  of  any  judge  thereof,  in  the  same  manner  as  if  the  contempt  were 
for  not  attending,  or  for  refusing  to  give  testimony  in,  the  court.)  (78, 
1st  part,  Rose's  Code,  §  1057.) 

(In  case  of  refusal  of  witnesses  to  attend  or  be  sworn  or  to  answer  any 
question  put  by  the  commissioner,  master  or  (new)  examiner  or  by  counsel 
or  solicitor,  the  same  practice  shall  be  adopted  as  is  now  practiced  with 
respect  to  witnesses  to  be  produced  on  examination  before  an  examiner  of 
said  court  on  written  interrogatories.)  (67,  pt.  headed  "Compulsory  at- 
tendance of  witnesses") 

Rule  53.  Notice  of  taking  testimony  before  examiner,  etc.  (Notice  shall 
be  given  by  the  respective  counsel  or  parties  to  the  opposite  counsel  or 
parties  of  the  time  and  place  of  examination  before  an  examiner  or  like 
officer  for  such  reasonable  time  as  the  court  or  officer*  may  fix  by  order 
in  each  case.)  (67,  pt.  headed  "Notice  of  time  and  place.") 

1  "Court  or  officer"  for  "examiner." 

Rule  54.  Deposition  under  Rev.  Stat.  §§  863,  865,  866,  867 — Cross-examina- 
tioa  After  a  cause  is  at  issue,  depositions  may  be  taken  as  provided  by 
§§  863,  865,  866  and  867,  Revised  Statutes.  But  if  in  any  case  no  notice 
has  been  given  the  opposite  party  of  the  time  and  place  of  taking  the  dep- 
osition, he  shall,  upon  application  and  notice,  be  entitled  to  have  the 
witness  examined  orally  before  the  court,  (new)  or  to  a  cross-examination 
before  an  examiner  or  like  officer,  or  a  new  deposition  taken  with  notice, 
as  the  court  or  judge  under  all  the  circumstances  shall  order.  (68  and 
70  superseded,  Rose's,  Code,  §  1052.) 

Rule  55.  Deposition  deemed  published  when  filed.  Upon  the  filing  of  any 
deposition  or  affidavit  taken  under  these  rules  or  any  statute,  it  shall  be 
deemed  published,  unless  otherwise  ordered  by  the  court. 

New,  superseding  69. 

Rule  56.  On  expiration  of  time  for  depositions,  case  goes  on  trial  calendar. 
After  the  time  has  elapsed  for  taking  and  filing  depositions  under  these 
rules,  the  case  shall  be  placed  on  the  trial  calendar.  Thereafter  no  further 
testimony  by  deposition  shall  be  taken  except  for  some  strong  reason  shown 
by  affidavit.  In  every  such  application  the  reason  why  the  testimony  of 
the  witness  cannot  be  had  orally  on  the  trial,  and  why  his  deposition  has 
not  been  before  taken,  shall  be  set  forth,  together  with  the  testimony  which 
it  is  expected  the  witness  will  give. 

New. 


EQUITY   RULES  895 


Rule  57.  Continuances.  After  a  cause  shall  be  placed  on  the  trial  calen- 
dar it  may  be  passed  over  to  another  day  of  the  same  term,  by  consent  of 
counsel  or  order  of  the  court,  but  shall  not  be  continued  beyond  the  term 
save  in  exceptional  cases  by  order  of  the  court  upon  good  cause  shown  by 
affidavit  and  upon  such  terms  as  the  court  shall  in  its  discretion  impose. 
Continuances  beyond  the  term  by  consent  of  the  parties  shall  be  allowed  on 
condition  only  that  a  stipulation  be  signed  by  counsel  for  all  the  parties 
and  that  all  costs  incurred  theretofore  be  paid.  Thereupon  an  order  shall 
be  entered  dropping  the  case  from  the  trial  calendar,  subject  to  reinstate- 
ment within  one  year  upon  application  to  the  court  by  either  party,  in 
which  event  it  shall  be  heard  at  the  earliest  convenient  day.  If  not  so 
reinstated  within  the  year,  the  suit  shall  be  dismissed  without  prejudice 
to  a  new  one. 


Rule  58.  Discovery — Interrogatories — Inspection  and  production  of  docu- 
ments— Admission  of  execution  or  genuineness.  The  plaintiff  at  any  time 
after  filing  the  bill  and  not  later  than  twenty-one  days  after  the  joinder 
of  issue,  and  the  defendant  at  any  time  after  filing  his  answer  and  not 
later  than  twenty-one  days  after  the  joinder  of  issue,  and  either  party  at 
any  time  thereafter  by  leave  of  the  court  or  judge,  may  file  interrogatories 
in  writing  for  the  discovery  by  the  opposite  party  or  parties  of  facts  and  docu- 
ments material  to  the  support  or  defense  of  the  cause,  with  a  note  at  the  foot 
thereof  stating  which  of  the  interrogatories  each  of  the  parties  is  required 
to  answer.  But  no  party  shall  file  more  than  one  set  of  interrogatories  to 
the  same  party  without  leave  of  the  court  or  judge. 

If  any  party  to  the  cause  is  a  public  or  private  corporation,  any  opposite 
party  may  apply  to  the  court  or  judge  for  an  order  allowing  him  to  file 
interrogatories  to  be  answered  by  any  officer  of  the  corporation,  and  an 
order  may  be  made  accordingly  for  the  examination  of  such  officer  as  may 
appear  to  be  proper  upon  such  interrogatories  as  the  court  or  judge  shall 
think  fit. 

Copies  shall  be  filed  for  the  use  of  the  interrogated  party  and  shall  be 
sent  by  the  clerk  to  the  respective  solicitors  of  record,  or  to  the  last  known 
address  of  the  opposite  party  if  there  be  no  record  solicitor. 

Interrogatories  shall  be  answered,  and  the  answers  filed  in  the  clerk's 
office,  within  fifteen  days  after  they  have  been  served,  unless  the  time  be 
enlarged  by  the  court  or  judge.  Each  interrogatory  shall  be  answered  sepa- 
rately and  fully  and  the  answers  shall  be  in  writing,  under  oath,  and 
signed  by  the  party  or  corporate  officer  interrogated.  Within  ten  days 
after  the  service  of  interrogatories,  objections  to  them,  or  any  of  them,  may 
be  presented  to  the  court  or  judge,  with  proof  of  notice  of  the  purpose  so 
to  do,  and  answers  shall  be  deferred  until  the  objections  are  determined, 
which  shall  be  at  as  early  a  time  as  is  practicable.  In  so  far  as  the  ob- 
jections are  sustained,  answers  shall  not  be  required. 

(The  court  or  judge,  upon  motion  and   reasonable  notice,  may  make  all 


896  APPENDIX 

such  orders  as  may  be  appropriate  to  enforce  answers  to  interrogatories 
or  to  effect  the  inspection  or  production  of  documents  in  the  possession  of 
either  party  and  containing  evidence  material  to  the  cause  of  action  or  de- 
fense of  his  adversary.  Any  party  failing  or  refusing  to  comply  with  such 
an  order  shall  be  liable  to  attachment,  and  shall  also  be  liable,  if  a  plain- 
tiff, to  have  his  bill  dismissed,  and,  if  a  defendant,  to  have  his  answer 
stricken  out  and  be  placed  in  the  same  situation  as  if  he  had  failed  to 
answer.)  (See  2nd  pt.  18,  Rose's  Code,  §  977.) 

By  a  demand  served  ten  days  before  the  trial,  either  party  may  call  on 
the  other  to  admit  in  writing  the  execution  or  genuineness  of  any  document, 
letter  or  other  writing,  saving  all  just  exceptions;  and  if  such  admission 
be  not  made  within  five  days  after  such  service,  the  costs  of  proving  the 
document,  letter  or  writing  shall  be  paid  by  the  party  refusing  or  neglect- 
ing to  make  such  admission,  unless  at  the  trial  the  court  shall  find  that 
the  refusal  or  neglect  was  reasonable. 

Supersedes  40,  41,  42,  43,  44,  64  and  2d  pt.  18.  Drawn  from  order 
XXXI.,  English  practice. 

Rule  59.  Reference  to  master — Exceptional,  not  usual.  Save  in  matters 
of  account,  a  reference  to  a  master  shall  be  the  exception,  not  the  rule,  and 
shall  be  made  only  upon  a  showing  that  some  exceptional  condition  requires 
it.  (When  such  a  reference  is  made,  the  party  at  whose  instance  or  for 
whose  benefit  it  is  made  shall  cause  the  order  of  reference  to  be  presented 
to  the  master  for  a  hearing  1  within  twenty  days  (new)  succeeding  the 
time  when  the  reference  was  made,  unless  a  longer  time  be  specially  granted 
by  the  court  or  judge;  if  he  shall  omit  to  do  so,  the  adverse  party  shall  be 
at  liberty  forthwith  to  cause  proceedings  to  be  had  before  the  master,  at 
the  costs  of  the  party  procuring  the  reference.)  (74,  Rose's  Code,  1070.) 

1  Omitting  "on  or  before  next  rule  day." 

Rule  60.  Proceedings  before  master.  (Upon  every  such  reference,  it  shall 
be  the  duty  of  the  master,  as  soon  as  he  reasonably  can  after  the  same  ia 
brought  before  him,  to  assign  a  time  and  place  for  proceedings  in  the  same, 
and  to  give  due  notice  thereof  to  each  of  the  parties,  or  their  solicitors;  and 
if  either  party  shall  fail  to  appear  at  the  time  and  place  appointed,  the 
master  shall  be  at  liberty  to  proceed  ex  parte,  or,  in  his  descretion,  to  ad- 
journ the  examination  and  proceedings  to  a  future  day,  giving  notice  to 
the  absent  party  or  his  solicitor  of  such  adjournment;  and  it  shall  be  the 
duty  of  the  master  to  proceed  with  all  reasonable  diligence  in  every  such 
reference,  and  with  the  least  practicable  delay,  and  either  party  shall  be  at 
liberty  to  apply  to  the  court,  or  a  judge  thereof,  for  an  order  to  the  master 
to  speed  the  proceedings  and  to  make  his  report,  and  to  certify  to  the  court 
or  judge  the  reason  for  any  delay.)  (Identical  75,  Rose's  Code,  §  1071.) 

Rule  61.  Master's  report — Documents  identified  but  not  set  forth.  In  the 
reports  made  by  the  master  to  the  court,  no  part  of  any  state  of  facts,  ac- 
count, charge,  affidavit,  deposition,  examination,  or  answer  brought  in  or 
used  before  him  shall  be  stated  or  recited.  But  such  state  of  facts,  account, 
charge,  affidavit,  deposition,  examination,  or  answer  shall  be  identified,  and 


EQUITY   RULES  897 

referred  to,  so  as  to  inform  the  court  what  state  of  facts?,  account,  charge, 
affidavit,  deposition,  examination,  or  answer  were  so  brought  in  or  used.) 
{Identical  76,  Rose's  Code,  §  1078,) 

Rule  62.  Powers  of  master.  (The  master  shall  regulate  all  the  proceed- 
ings in  every  hearing  before  him,  upon  every  reference;  and  he  shall  have 
full  authority  to  examine  the  parties  in  the  cause,  upon  oath,  touching  all 
matters  contained  in  the  reference;  and  also  to  require  the  production  of  all 
books,  papers,  writings,  vouchers,  and  other  documents  applicable  thereto; 
and  also  to  examine  on  oath,  viva  voce,  all  witnesses  produced  by  the  parties 
before  him,  or  by  deposition,  according  to  the  acts  of  Congress,  or  otherwise, 
as  here  provided  ;1  and  also  to  direct  the  mode  in  which  the  matters  re- 
quiring evidence  shall  be  proved  before  him;  and  generally  to  do  all  other 
acts,  and  direct  all  other  inquiries  and  proceedings  in  the  matters  before 
him.  which  he  may  deem  necessary  and  proper  to  the  justice  and  merits 
thereof  and  the  rights  of  the  parties.)  (77.  Rose's  Code,  §  1072.) 

1  Formerly  read  "and  to  order  the  examination  of  other  witnesses  to  be 
taken  under  commission  to  be  issued  upon  his  certificate  from  the  clerk's 
office,  or  by  deposition,  according  to  acts  of  Congress  or  otherwise,  as  here- 
inafter provided." 

See  Foote  v.  Silsby,  3  Blatchf.  507 ;  Consolidated  Fastener  Co.  v.  Columbian 
Co.  85  Fed.  54;  Bate  Refrigerator  Co.  v.  Gillette,  28  Fed.  673;  White  v.  Rail- 
road Co.  79  Fed.  113;  Deitch  v.  Staub,  115  Fed.  309;  Welling  v.  La  Baw,  32 
Fed.  293;  Lull  v.  Clark,  20  Fed.  454. 

Rule  63.  Form  of  accounts  before  master.  (All  parties  accounting  before 
a  master  shall  bring  in  their  respective  accounts  in  the  form  of  debtor  and 
creditor;  and  any  of  the  other  parties  who  shall  not  be  satisfied  with  the 
account  so  brought  in  shall  be  at  liberty  to  examine  the  accounting  party 
viva  voce,  or  upon  interrogatories,!  as  the  master  shall  driect.)  (79  Rose's 
Code,  §  1073.) 

1  Omitted  "in  the  master's  office,  or  by  deposition." 

Rule  64.  Former  deposition,  etc.,  may  be  used  before  master.  (All  affi- 
davits, depositions  and  documents  which  have  been  previously  made,  read, 
or  used  in  the  court  upon  any  proceeding  in  any  cause  or  matter  may  be 
used  before  the  master.)  (Identical  80  Rose's  Code,  §  1074.) 

Rule  65.  Claimants  before  master  examinable  by  him.  (The  master  shall 
be  at  liberty  to  examine  any  creditor  or  other  person  coming  in  to  claim 
before  him,  either  upon  written  interrogatories  or  viva  voce,  or  in  botli 
modes,  as  the  nature  of  the  case  may  appear  to  him  to  require.  The  evidence 
upon  such  examinations  shall  be  taken  down  by  the  master,  or  by  some 
other  person  by  his  order  and  in  his  presence,  if  either  party  requires  it, 
in  order  that  the  same  may  be  used  by  the  court  if  necessary.)  (Identical 
81  Rose's  Code,  §  1075.) 

Rule  66.     Return  of  master's  report — Exceptions — Hearing.     (The  master, 
as  soon  as  his  report  is  ready,  shall  return  the  same  into  the  clerk's  office 
and  the  day  of  the  return  shall  be  entered  by  the  clerk  in  the  Equity  Docket. 
Montg. — 57. 


898  APPENDIX 

The  parties  shall  have  twenty  day  si  from  the  time  of  the  filing  of  the  re- 
port to  file  exceptions  thereto,  and  if  no  exceptions  are  within  that  period 
filed  by  either  party,  the  report  shall  stand  confirmed.  If  exceptions  are 
filed,  they  shall  stand  for  hearing  before  the  court,  if  then  in  session,  or, 
if  not,  at  the  next  sitting  held  thereafter,  by  adjournment  or  othenyise.) 
(83.  Rose's  Code,  §§  1077,  1079.) 

1  Formerly  "one  month." 

Rule  67.  Costs  on  exceptions  to  master's  report.  (In  order  to  prevent  ex- 
ceptions to  reports  from  being  filed  for  frivolous  causes,  or  for  mere  de- 
lay, the  party  whose  exceptions  are  overruled,  shall,  for  every  exception 
overruled,  pay  five  dollars  (new)  costs  to  the  other  party,  and  for  every 
exception  allowed  shall  be  entitled  to  the  samel  costs.)  (84)  Rose's  Code, 
§  1080. 

1  "Omitted." 

Rule  68.  Appointment  and  compensation  of  masters.  (The  district1  courts 
may  appoint  standing  masters  in  chancery  in  their  respective  districts  (a 
majority  of  all*  the  judges  thereof  concurring  in  the  appointment),  and 
they  may  also  appoint  a  master  pro  hac  vice  in  any  particular  case.  The 
compensation  to  be  allowed  to  every  master3  shall  be  fixed  by  the  district* 
court,  in  its  discretion,  having  regard  to  all  the  circumstances  thereof,  and 
the  compensation  shall  be  charged  upon  and  borne  by  such  of  the  parties 
in  the  cause  as  the  court  shall  direct.  The  master  shall  not  retain  his  report 
as  security  for  his  compensation;  but  when  the  compensation  is  allowed  by 
the  court,  he  shall  be  entitled  to  an  attachment  for  the  amount  against  the 
party  who  is  ordered  to  pay  the  same,  if,  upon  notice  thereof,  he  does  not 
pay  it  within  the  time  prescribed  by  the  court.)  (82.  Rose's  Code,  §§  690, 
1069.) 

1  Formerly  "circuit." 

2  Formerly  "both." 

3  Omitted  "in  chancery  for  his  services  in  any  particular  case." 

Rule  69.  Petition  for  rehearing.  (Every  petition  for  a  rehearing  shall 
?ontain  the  special  matter  or  cause  on  which  such  rehearing  is  applied  for, 
shall  be  signed  by  counsel,  and  the  facts  therein  stated,  if  not  apparent  on 
the  record,  shall  be  verified  by  the  oath  of  the  party  or  by  some  other  per- 
son. No  rehearing  shall  be  granted  after  the  term  at  which  the  final  decree 
of  the  court  shall  have  been  entered  and  recorded,  if  an  appeal  lies  to  the 
circuit  court  of  appeals  (new)  or  the  Supreme  Court.  But  if  no  appeal  lies, 
the  petition  may  be  admitted  at  any  time  before  the  end  of  the  next  term 
of  the  court,  in  the  discretion  of  the  court.)  (88.  Rose's  Code,  §  1094.) 

Identical  with  old  rule  88,  with  the  addition  of  the  words,  "circuit  court 
of  appeals." 

See  Giant  Powder  Co.  v.  Cal.  Powder  Co.  5  Fed.  197;  McLeod  v.  New 
Albany,  66  Fed.  378;  Brook  v.  Railroad.  Co.  102  U.  S.  107,  26  L.  ed.  91. 


EQUITY   BULES  899 

Rule  70.  Suits  by  or  against  incompetents.  (Guardian  ad  litem  to  defend  a 
suit  may  be  appointed  by  the  court,  or  by  any  judge  thereof,  for  infants  or 
other  persons  who  are  under  guardianship,  or  otherwise  incapable  of  suing 
for  themselves.  All  infants  and  other  persons  so  incapable  may  sue  by  their 
•/uardians,  if  any,  or  by  their  prochein  ami;  subject,  however,  to  such  orders 
as  the  court  or  judge  may  direct  for  the  protection  of  infants  and  other  per- 
sons.) (87.  Identical,  Rose's  Code,  §§  1024,  1025.) 

Rule  71.  Form  of  decree.  (In  drawing  up  decrees  and  orders,  neither  the 
bill,  nor  answer,  nor  other  pleadings,  nor  any  part  thereof,  nor  the  report 
of  any  master,  nor  any  other  prior  proceeding,  shall  be  recited  or  stated  in 
the  decree  or  order;  but  the  decree  and  order  shall  begin,  in  substance,  as 
follows:  "This  cause  came  on  to  be  heard  (or  to  be  further  heard,  as  the 
case  may  be)  at  this  term,  and  was  argued  by  counsel;  and  thereupon,  upon 
consideration  thereof,  it  was  ordered,  adjudged  and  decreed  as  follows,  viz" 
(Here  insert  the  decree  or  order.)  (86  Identical,  Rose's  Code,  §  1090.) 

Rule  72.  Correction  of  clerical  mistakes  in  orders  and  decrees.  (Clerical 
mistakes  in  decrees  or  decretal  orders,  or  errors  arising  from  any  accidental 
slip  or  omission,  may,  at  any  time  before*  the  close  of  the  term  at  which 
final  decree  is  rendered,  (new)  be  corrected  by  order  of  the  court  or  a  judge 
thereof,  upon  petition,  without  the  form  or  expense  of  a  rehearing.)  (85 
Rose's  Code,  §  1092.) 

1  Instead  of  "an  actual  enrolment  thereof." 

Rule  73.  Preliminary  injunctions  and  temporary  restraining  orders.  No 
preliminary  injunction  shall  be  granted  without  notice  to  the  opposite  party. 
Nor  shall  any  temporary  restraining  order  be  granted  without  notice  to  the 
opposite  party,  unless  it  shall  clearly  appear  from  specific  facts,  shown  by 
affidavit  or  by  the  verified  bill,  that  immediate  and  irreparable  loss  or  damage 
will  result  to  the  applicant  before  the  matter  can  be  heard  on  notice.  In  case 
a  temporary  restraining  order  shall  be  granted  without  notice,  in  the  contin- 
gency specified,  the  matter  shall  be  made  returnable  at  the  earliest  possible 
time,  and  in  no  event  later  than  ten  days  from  the  date  of  the  order,  and  shall 
take  precedence  of  all  matters,  except  older  matters  of  the  same  character. 
When  the  matter  comes  up  for  hearing  the  party  who  obtained  the  temporary 
restraining  order  shall  proceed  with  his  application  for  a  preliminary  in- 
junction, and  if  he  does  not  do  so  the  court  shall  dissolve  his  temporary  re- 
straining order.  Upon  two  days  notice  to  the  party  obtaining  such  temporary 
restraining  order,  the  opposite  party  may  appear  and  move  the  dissolution 
or  modification  of  the  order,  and  in  that  event  the  court  or  judge  shall  pro- 
ceed to  hear  and  determine  the  motion  as  expeditiously  as  the  ends  of  justice 
may  require.  Every  temporary  restraining  order  shall  be  forthwith  filed 
in  the  clerk's  office. 

New,   changing  the  practice  under  55. 

Rule  74.  Injunction  pending  appeal.  (When  an  appeal  from  a  final  decree 
in  an  equity  suit  granting  or  dissolving  an  injunction  is  allowed  by  a  jus* 


900  APPENDIX 

tice  or  a  judge  who  took  part  in  the  decision  of  the  cause  he  may,  in  his 
discretion,  at  the  time  of  such  allowance  make  an  order  suspending,  modify- 
ing, or  restoring  (new)  the  injunction  during  the  pendency  of  the  appeal 
upon  such  terms  as  to  bond  or  otherwise  as  he  may  consider  proper  for  the 
security  of  the  rights  of  the  opposite  party.)  (93  Rose's  Code,  §  2022.) 

Rule  75.     Record  on  appeal — Reduction  and  preparation.     In  case  of  ap- 
peal: 

(a)  It  shall  be  the  duty  of  the  appellant  or  his  solicitor  to  file  with  the 
clerk  of  the  court  from  which  the  appeal   is  prosecuted,  together  with  proof 
or  acknowledgment  of  service  of  a  copy  on  the  appellee  or  his  solicitor,  a 
precipe   which   shall   indicate   the   portions   of  the   record  to   be   incorporated 
into  the  transcript  on  such  appeal.     Should  the  appellee  or  his  solicitor  de- 
sire  additional   portions  of   the   record   incorporated   into   the   transcript,   he 
shall  file  with  the  clerk  of  the  court  his  precipe  also  within  10  days  there- 
after, unless  the  time  shall  be  enlarged  by  the  court  or  a  judge  thereof,  in- 
dicating such  additional   portions  of  the  record  desired  by  him. 

(b)  The  evidence  to  be  included  in  the  record  shall  not  be  set  forth   in 
full,  but  shall  be  stated  in  simple  and  condensed  form,  all  parts  not  essential 
to  the  decision  of  the  questions  presented  by  the  appeal  being  omitted  and 
the   testimony   of  witnesses   being   stated  only   in   narrative  form,   save   that 
if  either  party  desires  it,  and  the  court  or  judge  so  directs,  any  part  of  the 
testimony  shall  be  reproduced  in  the  exact  words  of  the  witness.       The  duty 
of  so  condensing  and  stating  the  evidence  shall  rest  primarily  on  the  appel- 
lant, who  shall  prepare  his  statement  thereof  and  lodge  the  same  in  the  clerk's 
office  for  the  examination  of  the  other  parties  at  or  before  the  time  of  filing 
his  precipe  under  paragraph   (a)    of  this  rule.     He  shall  also  notify  t!ie  other 
parties  or  their  solicitors  of  such  lodgment  and  shall  name  a  time  and  place 
when  he  will  ask  the  court  or  judge  to  approve  the  statement,  the  time  so 
named  to  be  at  least  10  days  after  such  notice.    At  the  expiration  of  the  time 
named  or  such  further  time  as  the  court  or  judge  may  allow,  the  statement, 
together  with  any   objections   made  or  amendments   proposed  by  any   party, 
shall  be  presented  to  the  court  or  the  judge,  and  if  the  statement  be  true, 
complete,  and  properly  prepared,  it  shall  be  approved  by  the  court  or  judge, 
and  if  it  be  not  true,  complete,  or  properly  prepared,  it  shall  be  made  so  under 
the  direction  of  the  court  or  judge  and  shall  then  be  approved.     When  ap- 
proved it  shall  be  filed  in  the  clerk's  office  and  become  a  part  of  the  record 
for  the  purposes  of  the  appeal. 

(c)  If  any  difference  arise  between  the   parties  concerning  directions  as 
to  the  general  contents  of  the  record  to  be  prepared  on  the  appeal,  such  dif- 
ference shall  be  submitted  to  the  court  or  judge  in  conformity  with  the  provi- 
sions of  paragraph    (6)    of  this  rule  and  shall  be  covered  by  the  directions 
(which  the  court  or  judge  may  give  on  the  subject.) 


Rule  76.     Record  on  appeal — Redu^ion  and  preparation — Costs — Correction 
of  omissions.     (In  preparing  the  transcript  on  an  appeal,  especial  care  shall 


EQUITY  RULES  901 

be  taken  to  avoid  the  inclusion  of  more  than  one  copy  of  the  same  paper  and 
to  exclude  the  formal  and  immaterial  parts  of  all  exhibits,  documents  and 
^ther  papers  included  therein;  and  for  any  infraction  of  this  or  any  kindred 
rule  the  appellate  court  may  withold  or  impose  costs  as  the  circumstances 
of  the  case  and  the  discouragement  of  like  infractions  in  the  future  may  re- 
quire. Costs  for  such  an  infraction  may  be  imposed  upon  offending  solicitors 
as  well  as  parties. 

If,  in  the  transcript,  anything  material  to  either  party  be  omitted  by 
accident  or  error,  the  appellate  court,  on  a  proper  suggestion  or  its  own  mo- 
tion, may  direct  that  the  omission  be  corrected  by  a  supplemental  transcript. ) 

(New.) 

Rule  77.  Record  on  appeal — Agreed  statement.  (When  the  questions  pre- 
sented by  an  appeal  can  be  determined  by  the  appellate  court  without  an 
examination  of  all  the  pleadings  and  evidence,  the  parties,  with  the  approval 
of  the  district  court  or  the  judge  thereof,  may  prepare  and  sign  a  statement 
of  the  case  showing  how  the  questions  arose  and  were  decided  in  the  district 
court  and  setting  forth  so  much  only  of  the  facts  alleged  and  proved,  or 
sought  to  be  proved,  as  is  essential  to  a  decision  of  such  questions  by  the 
appellate  court.  Such  statement,  when  filed  in  the  office  of  the  clerk  of  the 
district  court,  shall  be  treated  as  superseding,  for  the  purposes  of  the  appeal, 
all  parts  of  the  record  other  than  the  decree  from  which  the  appeal  is  taken, 
and,  together  with  such  decree,  shall  be  copied  and  certified  to  the  appellate 
court  as  the  record  on  appeal.) 


Rule  78.  Affirmation  in  lieu  of  oath.  (Whenever  under  these  rules  an  oath 
is  or  may  be  required  to  be  taken,  the  party  may,  if  conscientiously  scrupu- 
lous of  taking  an  oath,  in  lieu  thereof  make  solemn  affirmation  to  the  trutli 
of  the  facts  stated  by  him.)  (91  Identical,  Rose's  Code,  §  938.) 

Rule  79.  Additional  rules  by  district  court.  With  the  concurrence  of  a 
majority  of  the  circuit  judges  for  the  circuit,  the  district  courts  may 
make  any  other  and  further  rules  and  regulations  for  the  practice,  proceed- 
ings and  process,  mesne  and  final,  in  their  respective  districts,  not  inconsist^ 
ent  with  the  rules  hereby  prescribed,!  and  from  time  to  time  alter  and  amend 
the  same.  (89.  Rose's  Code,  §  806.) 

1  Omitted  "in  their  discretion." 
Supersedes  old   rule  90. 

Rule  80.  Computation  of  time — Sundays  and  holidays.  When  the  time 
prescribed  by  these  rules  for  doing  any  act  expires  on  a  Sunday  or  legal 
holiday,  such  time  shall  extend  to  and  include  the  next  succeeding  day  that 
is  not  a  Sunday  or  legal  holiday. 

New. 


902  APPENDIX 


Rule  81.  These  rules  effective  February  1,  1913 — Old  rules  abrogated. 
These  rules  shall  be  in  force  on  and  after  February  1,  1913,  and  shall  gov- 
ern all  proceedings  in  cases  then  pending  or  thereafter  brought,  save  that 
where  in  any  then  pending  cause  an  order  has  been  made  or  act  done  which 
cannot  be  changed  without  doing  substantial  injustice,  the  court  may  give 
effect  to  such  order  or  act  to  the  extent  necessary  to  avoid  any  such  in- 
justice. 

All  rules  theretofore  prescribed  by  the  Supreme  Court,  regulating  the 
practice  in  suits  in  equity,  shall  be  abrogated  when  these  rules  take  effect. 

New. 


INDEX  TO  EQUITY  RULES. 


Rule 

Abatement,  defenses  formerly  presentable  by,  to  be  made  in  answer   ....  29 

Absence  of  persons  who  would  be  proper  parties 39 

Account : 

Matters  of,   reference  to   master    59 

To  be  identified  but  not  stated  in  master's  report 61 

Forms  of,  before  master    63 

Action : 

At  law,  erroneously  begun  as  suit  in  equity,  transfer 22 

Joinder  of,  causes  of 26 

To  be  presented  in  name  of  real  party  in  interest 37 

Additional  rules,  by  district  court 79 

Administrator    as    party    : 37 

Admissibility  of  evidence  offered  to  be  passed  on  by  court 46 

Admission  of  execution,  etc.,  of  documents,  etc 58 

Advancement  of  causes,  notice  of  interlocutory  orders,  etc 6 

Affidavit : 

Plaintiff's,  of  noncompliance  with  decree,  attachment  to  issue  ......  '8 

To  be  made  of  service  of  process  by  person  appointed  therefor   ....  15 

Of  expert  witnesses  in  patent  and  trade-mark  cases,  provisions  as  to  48 

Required  on  application  for  continuance 57 

To  be  identified  but  not  stated  in  master's  report 61 

Previously  used  in  court,  etc.,  may  be  used  before  master  64 

On  application  for  preliminary   injunction    73 

Affirmation  in  lieu  of  oath   78 

Agreed  statement,  record  on  appeal   77 

Alternative  defenses  may  be  stated  in  answer 30 

Amended  bill,  answer  to    ,. . .  32 

Amendments: 

Generally 19 

Permitted  of  any  process,  pleading,  record,  etc 19 

Of  bill— 

As    of   course 28 

Not  after  defendant's  pleading   filed,  except,   etc 28 

On  suggestion  of  defect  of  parties    43 

Of  pleadings   on   substitution    of   parties    45 

Answer : 

Subpoena,  proper  process  to  compel 7 

Time   for 12 

903 


904r  APPENDIX 

-Answer — continued.  Rule 

To  be  filed  within  time  named  in  subpoena   16 

Enlarging  time  for  filing   .  . 17 

When  to  be  filed,  on  motion  to  set  aside  decree  pro  confesso 17 

Exceptions  to,  for  scandal  and  impertinence,  shall  not  obtain   21 

Defenses  to  be  presented  in    29 

To  be  filed  if  motion  to  dismiss  denied   29 

If   not   filed,   decree   pro   confesso   entered    29 

Defenses  formerly  presentable  by  plea  in  bar  or  abatement,  to  be 

made  in    29 

What  to  contain   30 

Amendment  of,  by  leave,  on  reasonable  notice   30 

To  omit  statement  of  evidence   30 

To  avoid  general  denial  of  averments  of  bill   30 

To   specifically  admit,  or  deny,  or  explain  facts  upon  which   plain- 
tiff relies    30 

Contents,    counterclaim    30 

To  state  counterclaims   30 

May  state  defenses   in   alternative    30 

Cause  at  issue  on  filing  of,  unless,  etc 31 

To  amended  bill 32 

New  or  supplemental,  to  be  filed  to  amended  bill 32 

Exceptions  for  insufficiency  of,  abolished    33 

If  insufficient  may  be  amended  or  matter  stricken'  out   33 

When  defect  of  parties  suggested,  proceedings  on    43 

May  be  stricken  out  for  failure  to  answer  interrogations  or  produce 

documents    58 

To  be  identified  but  not  stated  in  master's  report 61 

Appeal : 

Injunction   pending    74 

Record  on — 

Differences  as  to    75 

Reduction    and    preparation    75 

Costs — correction   of   omissions    .  .'V.'.J!^'.  ?.' 76 

Agreed  statement  77 

Appearance: 

Filed  with  clerk  to  be  noted  in  equity  docket   3 

Subpoena  proper  process  to  compel    7 

Appellant: 

To  notify  opposing  party  or  solicitors,  etc 75 

To  file  precipe  indicating  portion  of  record  on  appeal    75 

To   condense   evidence,   etc 75 

Appellate  court: 

Not  to  reverse  decree  unless    46 

May  direct  further  steps  as  justice  may   require    46 

Appellee  to  file  precipe  indicating  additional  portions  of  record  on  appeal  75 

Appointment  and  fees  of  stenographers   50 

Appointment  and  compensation  of  masters   68 


INDEX   TO    EQUITY    KULES 

Assistance,  writ  of:  Rule 

When   to  issue 7 

x      On  refusal  to  obey  decree  for  delivery  of  possession   9 

Attachment: 

Provisions   as   to    7 

For   noncompliance   with   decree    "8 

Not  to  be  discharged  unless  upon  full  compliance  with  decree,  etc.   . .  8 

May  issue  for  failure  to  answer  interrogatories  or  produce  documents  58 

Attendance  of  witnesses  before  commissioner,  master,  or  examiner    ....  52 

Averments  of  bill,  if  not  denied,  deemed  confessed,  except,  etc 30 

Bill: 

Subpoena  proper  mesne  process  to  compel  appearance  and  answer  to  7 

When  filed,  clerk  to  issue  subpoena   12 

May  be  taken  pro  confesso  if  answer  not  filed,  etc 12 

Exceptions  to,  for  scandal  and  impertinence,  shall  not  obtain 21 

To  be  signed,  by  solicitors   24 

Of  complaint,  contents    25 

Stockholder's      27 

Stockholder's  what  to  contain    27 

Amendment   of,   as  of   course    28 

Amended,    answer    to    32 

Supplemental,  what  necessary  in   3i> 

Of  revivor  and  supplemental  bills,  what  necessary  in 3."> 

May  be  dismissed  for  failure  to  answer   interrogatories  or  produce 

documents     58 

Verification  of,  on  application  for  preliminary  injunction,  etc 73 

Bond  on  order  suspending,  etc.,  injunction  pending  appeal   74 

Books : 

Clerk  to  keep  equity  docket,  order  book,  equity  journal  3 

Papers,  etc.,  production  of,  required  by  master 62 

Calendar,  trial  case  goes  on,  when   56 

Cause,  speeding,  provision  as  to,  on  motion  to  set  aside  decree  pro  confesso  17 
Causes : 

Advancement,  conduct  and  hearing  of,  notice  of  interlocutory  orders 

for    6 

Of  action,   joinder  of    2(1 

Frivolous,  imposition  of  costs  on  exceptions  to  master's  report   ....  67 

Certificate,  signature  of  solicitor  to  pleading  to  be  considered    24 

Chambers,  awarding  process,  commissions,  orders,  rules,  etc.,  by  judge  at  1 

Charge  to  be  identified  but  not  stated   in   master's   report    61 

Circuit  court  of  appeals,   if  appeal   lies  to,  rehearing  not  granted  after 

term     (59 

Circuit  judge  may  dispense  with  motion  day  if  public  interest  permits..  6 

Citizenship,  name,  and  residence  of  each  party  to  be  stated  in  bill   2.~> 

Claim,  further  and  better  statement  of  nature  of,  may  be  ordered   2(1 

Claimants  before  master,  examinable  by  him 6-1 

Class,  representatives  of,  may  sue  or  defend   3S 

Clerical  mistakes  in  orders  and  decrees,  correction  of  .  72 


006  APPENDIX 

Clerk:  Rule 

Duties  of   2 

To  keep — 

Equity    docket    3 

Order   book    3 

Equity  journal    3 

Motions  grantable  of  course  by    5 

To  grant  as  of  course,  motions  and  applications  not  requiring  order  of 

court   or    judge    5 

To  issue  writ  of  assistance  on  refusal  to  obey  decree  for  delivery  of 

possession     9 

To  issue  subpoena  when  bill  filed,  and  not  before 12 

Of  court,  verification  of  pleadings  before   36 

To  send  copies  of  interrogatories  to  solicitors  of  record   58 

Office  of— 

Awarding  of  process,  commissions,  orders,  rules,  etc.,  by  judge 

at     1 

When   open    2 

Master  to  return   report   into    66 

Temporary  restraining  orders  to  be  filed  in 73 

Statement  as  to  appeal  to  be  filed  in   . .  . '. 75 

Commissioner,  attendance  of  witnesses  before  52 

Commissions,  award  of,  by  judge  at  chambers,  etc 1 

Compensation  and  appointment  of  masters   68 

Compensation  of  master  to  be  fixed  by  court   68 

Competency,  etc.,  of  questions  asked  before  examiner  not  to  decided  by 

him    51 

Computation  of  time — Sundays  and  holidays    80 

Conduct  of  causes,  notice  of  interlocutory  orders  for   6 

Contempt  for  noncompliance  with  mandatory  order,  etc 8 

Continuances,   provisions  as   to 57 

Copy  of  precipe: 

Indicating  portions  of  record  on  appeal   75 

Service  of,   indicating,   etc ' 75 

Corporate  officer  to  sign  interrogatories  under  oath    58 

Corporations : 

When  interrogatories  to  be  answered  by  officer  of   58 

Stockholder's   bill   against    27 

Correction : 

Clerical  mistakes  in  orders  and  decrees   72 

Omissions  in  transcript  on  appeal    76 

Costs : 

Payment  of,  and  full  compliance  with  decree  before  a  discharge  of 

attachment j 8 

Of  plaintiff  to  be  paid  before  court  will  set  aside  decree  pro  confesso, 

etc 17 

Terms  as  to,  when  further  and  particular  statement  in  pleading  re- 
quired      20 

To  nominal  parties    40 


INDEX  TO  EQUITY  KULES  907 

Costs — continued.  Rule 

Stenographer's  fees  to  be  taxed  as 50 

•x       Of  incompetent,  etc.,  depositions  to  be  dealt  with  by  court 51 

On  continuances,  provisions   as  to    ,  57 

On  proving  execution  or  genuineness  of  document,  etc 58 

On   reference  to  master    59 

On   exception   to   master's   report    67 

May   be   imposed   upon   offending   solicitors    76 

Imposition  of,  for  infraction  of  rule  as  to  record  on  appeal 76 

Counsel : 

Signature  of    24 

To  give  notice  of  taking  testimony  before  examiner,  etc 53 

Consent  of,  to  continuances,  provisions  as  to   57 

To  sign  petition  for  rehearing 69 

Counterclaim : 

To    be    stated    in    answer    30 

To    be    replied    to    , 31 

In  default  of  reply  to,  decree  pro  confesso  entered   31 

Court : 

On  motion  or  own  initiative,  may  order  redundant,  impertinent,  or 

scandalous  matter  stricken  out   21 

Testimony   usually   to   be   taken    in,   at   trial    46 

To  deal  with  cost  of  incompetent,  etc.,  depositions   51 

Contempt   of,    by   witness    refusing   to   appear   before   commissioner, 

master,    or    examiner    52 

May  appoint  standing  masters  in  chancery   68 

Provisions  as  to  approval  by,  of  appellant's  statement,  etc.,  on  appeal  75 

District,  additional  rules  by    79 

Creditor  making  claim  before  master  examinable  by  him 65 

Cross  bill — counterclaim  to  be  stated  in  answer,  and  not  by  30 

Cross-examination  of  expert  witnesses  in  patent  and  trade-mark  cases  .  .  48 

Cross-examination  of  witness  where  no  notice  of  deposition  given   54 

Damage : 

Averments  in  bill  as  to  30 

To  be  shown  on  application  for  preliminary  injunction   73 

Death   of   party,   revivor    45 

Decrees  of  court  to  be  entered  in  equity  journal   3 

Decrees : 

Process  to   issue  to  compel  obedience  to    7 

Compelling  obedience  to,  writ  of  sequestration  8 

Discharge  of  attachment  upon  compliance  with   8 

For  specific  performance,  provision  as  to   8 

For  performance  of  specific  act,  attachment  when 8 

Solely  for  payment  of  money,  writ  of  execution  on   8 

Final,   enforcement   of    8 

For  delivery  of  possession,  writ  of  assistance  on  refusal  to  obey   .  .  9 

For  deficiency  in  foreclosure,  etc 10 


908  APPENDIX 

Decrees — continued.  Rule 

Pro  confesso — 

On  default  in  answer   10 

,        When   may   be   set   aside 17 

To  be   followed   by   final    decree    17 

Final,   following   decree   pro  confesao — 
Pro   confcsso — 

Entered,  if  answer  not  filed,  etc 20 

In  default  of   reply  to  counterclaim    31 

Not  to  be  reversed  unless  material  prejudice  would  result   46 

Form   of 71 

Shall  not  recite  pleadings 71 

Correction  of  clerical  mistakes  in .'•'!*. .'.".' 72 

Final,  appeals  from  in  injunction  suits   ....;".' .''.7.  ;*.''.  .'Vv.1. '.'.I 74 

To  be  sent  up  with  agreed  statement  on  appeal 77 

Deeds,  etc.,  decree  for  delivering  up,  attachment  in  8 

Default:  ... 

To  answer,  bill  taken  pro  confesso  16 

Of  reply  to  counterclaim,  decree  pro  confesso    31 

In  answer  to  amended  bill,  proceedings  on  32 

Defect : 

Court  to  disregard  in  proceeding  not  affecting  substantial   rights    .  .  19 
Of  parties — 

Resisting   objection    43 

Tardy   objection   to    44 

Defendant: 

Subpoena  proper  process  to  compel  appearance  and  answer  of   7 

If  not  found,  writ  of  sequestration  proper  process  to  issue,  etc 7 

To  take  notice  of  certain  decrees    8 

Required  to  file  answer  on  or  before  twentieth  day  after  service  of 

subpoena      12 

Service  of  subpoena  to  be  upon   13 

To  answer  within  time  named   in  subpoena    16 

Person  refusing  to  join  as  plaintiff  or  defendant  may   be  made  de- 
fendant        37 

Time  within   which  to   take   deposition   for    47 

Defense : 

Further  and  better  statement  of  nature  of,  may  be  ordered 20 

How   presented    29 

What  to  be  heard  separately  and  disposed  of  before  trial,  etc 29 

Testing  sufficiency   of    33 

Deficiency  in  foreclosure,  etc.,  decree  for    10 

Delay: 

Signature  of  solicitor  to  pleadings  certificate  that  pleadings  not  in- 
terposed   for    24 

Master  to  certify  reason  for  any  to  court  60 

Imposition  of  costs  for,  on  exceptions  to  master's  report 67 

Delivery  of  possession,  writ  of  assistance  to  enforce   7 

Demands,  joint  and   several    42 


INDEX   TO   EQUITY   RULES  909 

Rule 

Demurrers  abolished    29 

Depositions: 

To  be  taken  in  exceptional  instances   47 

Time  within  which  to  be  taken   47 

Taken  before  examiners,  etc 49 

Expense  of  taking  to  be  advanced  by  party  calling  witnesses   50 

Court  to  deal  with  costs  of  incompetent,  etc 51 

Under  R,  S.  863,  865,  866,  867 — cross-examination   54 

Deemed  published  when  filed 55 

On  expiration  of  time  for,  case  goes  on  trial  calendar   56 

To  be  identified  but  not  set  forth  in  master's  report   61 

May   be  taken   by   master    62 

Etc.,  former,  may  be  used  before  master    64 

Previously  used  in  court  may  be  used  before  master 64 

Differences  concerning  directions  as  to  contents  of  record  on  appeal,  pro- 
visions as  to    75 

Disability  of  any  party  to  be  stated  in  bill   25 

Discovery,  interrogatories  for,  when  to  be  filed    58 

Dismiss,  motion  to,  setting  down  for  hearing 29 

Dismissal  of  causes  continued,  if  not  reinstated   57 

District  courts: 

Always  open  for  certain   purposes    1 

To  establish  times  and  places  when  motions  may  be  made  and  dis- 
posed of 6 

Additional    rules    by 79 

District  judge  may  make,  direct,  and  award  process,  commissions,  orders, 

rules,    etc 1 

Documents  : 

Inspection  and  production  of 58 

Court  may  enforce  inspection  and  production  of   58 

Interrogatories  for  discovery  of,  when  to  be  filed    58 

Execution  or  genuineness  of,  call  for  admission  of 58 

Identified  but  not  set  forth  in  master's  report  61 

Production  of,  required  by  master 62 

Previously  used  in  court  may  be  used  before  master 64 

Dwelling  house,  service  of  subpoena  by  leaving  copy  at   13 

Equity  docket: 

Clerk   to   keep    3 

Index  of 3 

Noting  of  order   in,  not  notice    4 

Day  of  return  of  master's  report  to  be  entered  in   66 

Equity  journal: 

Clerk    to   keep 3 

Index  of    3 

Equity,  suit  in: 

Action  at  law  erroneously  begun  as — transfer   22 

Matters  ordinarily  determinable  at  law  wlien  arising  in,  to  be  dis- 
posed  of   therein    23 


910  APPENDIX 

Rule 

Error  or  defect  in  proceedings,  court  to  disregard  when  not  affecting  sub- 
stantial  rights    19 

Evidence: 

Mere  statement  of,  to  be  omitted  from  bill   25 

Admissibility  of,  to  be  passed  on  by  court 46 

Offered  and  excluded,  proceedings  on    46 

Affidavits  of  expert  witnesses  in  patent  and  trade-mark  cases,  when 

not  to  be  used  as    48 

Taken  before  examiners  to  be  returned  to  court  49 

Taken  before  examiners,  provisions  as  to   51 

Objections  to,  taken  before  examiner,  etc 51 

Court  or  judge  may  enforce  answers  to  interrogatories  and  production 

of  documents  containing 58 

Master  may  direct  mode  of  proving  matters  before  him 62 

Before  master  on  examination  to  be  taken  down    65 

How  to  be  stated  in  record 75 

Ex  parte,  cause  to  be  proceeded  with  after  decree  pro  confesso 36 

Examination  to  be  identified  but  not  stated  in  master's  report   61 

Examiners: 

Evidence  taken  before — 

To  be  returned  to  court 49 

Provisions  as  to   51 

Not  to  decide  on  competency,  materiality,  or  relevancy  of  questions  51 

Attendance  of  witnesses  before   52 

Notice  of  taking  testimony  before,'  etc 53 

Cross-examination   of   witness   before    54 

Exceptions: 

For  insufficiency  of  answer  abolished   33 

To  evidence  offered  and  excluded,  provisions  as  to   46 

To  master's  report    66 

Costs  on  67 

Execution : 

Writ  of,  provisions  as  to    8 

Admission  of,  of  documents,  etc 58 

Executor  as  party    37 

Expert  witnesses,  testimony  of,  in  patent  and  trade-mark  cases 48 

Facts : 

Ultimate  statement  of,  upon  which  relief  asked,  to  be  stated  in  bill  25 

Insufficiency  of,  as  defense,  how  presented   29 

Material,  may  be  alleged  in  supplemental  pleading 34 

Not  to  be  stated  in  master's  report  61 

Fees   of  stenographer    50 

File  number,  each  suit  and  all  papers,  process,  etc.,  to  be  marked  with, 

and  noted  on  equity  docket    3 

Filing  of  deposition  deemed  publication   55 

Final  hearing,  points  of  law  may  be  disposed  of  before    29 


INDEX  TO  EQUITY  RULES  911 

Final  Process:  Rule 

Issue  and  return  of   1 

-x        To  be  served  by  marshal,  deputy,   etc 15 

Foreclosure  of  mortgages,  etc.,  decree  for  balance  due   10 

Form  of  accounts  before  master    63 

Form  of  decree   71 

Former  depositions,  etc.,  may  be  used  before  master   64 

Forms : 

Technical,   of   pleadings   abrogated    18 

Alternative — prayer  for  specific  relief  may  be  in    25 

Genuineness   of   documents,   admission   of,   etc 58 

Guardian : 

As   party    37 

May  sue  for  infants    70 

Ad  litem,  may  be  appointed  by  court  or  judge,  etc 70 

Hearing : 

On  merits — making  and  directing  interlocutory  motions,  orders,  rules, 

etc.,  preparatory  to   1 

Of  causes,  notice  of  interlocutory  orders   for    6 

Final,  points  of  law  may  be  disposed  of  before 29 

On  exceptions  to  report  of  master    66 

Heir  as  party  to  suits  to  execute  trusts  of  will 41 

Holidays : 

Legal,  clerk's  office  not  open   2 

Computation   of   time    80 

Impertinence,   scandal,   exceptions   to   bills,   answers,   etc.,   for,   shall   not 

obtain 21 

Incompetents,  suits  by  or  against 70 

Indices  of  equity  docket,  order  book,  and  equity  journal,  clerk  to  keep  3 

Infants : 

Nothing  to  be  taken  against  as  confessed    30 

Nominal  parties  in  suits  not  against   40 

May  sue  by  guardian  or  by  prochein  ami  70 

Guardians  ad  litem  may  be  appointed  to  defend  suits  against 70 

Injunction : 

For  specific  performance,  provision  as  to   8 

Preliminary,  and   temporary  restraining  orders    73 

Pending    appeal    74 

Insufficiency  of  fact,  defense  of,  how  presented  29 

Interlocutory  motions,  orders,  rules,  etc.,  making  and  directing   1 

Interrogatories : 

Written,  practice  as  to,  to  be  followed  in  case  of  refusal  of  witness 

before   master,   examiner,   etc 52 

When  to  be  filed   58 

When   to   be   answered,   etc 58 

Court   may    enforce    answers   to    58 

To  be  answered   separately  and   fully,   in  writing,   under   oath,   and 

signed   58 

Objections  to,  provisions  as  to   58 


012  APPENDIX 

Interrogatories — continued.                                                                                       Rule- 
Copies  to  be  sent  by  clerk  to  solicitors  of  record  58 

Examination  of  accounting  party  before  master  on    58 

Claimants   before   master   examinable   on    65 

Intervention,   when    allowed    37 

Issue: 

Of  subpoena    12 

Cause  at,  upon  filing  of  answer,  except,  etc 31 

Joinder  of  causes  of  action 26 

Joinder  of  parties,  provision  as  to 37 

Joint   and   several   demands    42 

Judge: 

District,  may  make,  direct,  and  award  process,  commissions,  orders, 

rules,    etc 1 

In  chambers,  orders  by.  to  be  entered  in  order  book   3 

May  suspend,  alter,  or  rescind  motion  granted  as  of  course  by  clerk  5 

On  notice,  if  any,  may  make  interlocutory  orders,  etc 6 

Verification  of  pleadings   before    36 

Jurisidction,  ground  on  which  depends  to  be  stated  in  bill 25 

Justice,  convenient  administration  of,  joinder  of  causes  of  action  to  pro- 
mote      26 

Land,  decree  for  conveyance  of,  attachment  in   8 

Law: 

Action  erroneously  begun  as  suit  in  equity — transfer 22 

Matters  ordinarily  determinable  at,  when  arising  in  suit  in  equity, 

to  be  disposed  of  therein 23 

Points  of,  may  be  disposed  of  before  final  hearing   29 

Letter,  call  for  admission  of  genuineness  of,  etc 58 

Loss,  immediate  and  irreparable,  to  be  shown  on  application  for  temporary 

restraining  order    73 

Lunatic,   nothing   to  be  taken   against   as   confessed    30 

Marshal,   deputy,   etc.,   to   serve   all   process,   except 15 

Master: 

Attendance  of   witnesses  before    52 

Reference  to,  exceptional  not  usual    59 

Proceedings    before    60 

Duties    of     60 

May  proceed  ex  parte  when   60 

May  adjourn  examination,  etc.,  when 60 

To  proceed   with   reasonable  diligence    60 

Reports  of — documents  to  be  identified  but  not  set  forth   61 

Powers   of    62 

To  regulate  all  proceedings  before  him    C2 

May   require  production  of  all  books,  papers,  etc 62 

Form  of  accounts  before  63 

Former  depositions,  etc.,  may  be  used  before   64 

Claimants  before,  examinable  by  him    65 

Appointment  and  compensation   of    68 


INDEX  TO  EQUITY  EULES  913 

Master — continued.  Rule 

Entitled  to  attachment  for  his  compensation,  when   68 

Not  to  retain  report  as  security  for  compensation   68 

Pro  hoc  vice,  in  particular  cases,  may  be  appointed  by  court 68 

In  chancery,  standing,  may  be  appointed  by  the  court 68 

Master's  report: 

Return    of — exceptions — hearing    66 

Costs  on  exception  to   67 

Not  to  be  recited  in  decree  or  order   71 

Material  supplemental  matter  may  be  set  forth  in  amended  pleadings   . .  .  19 

Materiality  of  questions  not  to  be  decided  by  examiner 5J 

Matter : 

Further  and  better  particulars  of,  in  any  pleading  may  be  ordered. .  .  20 

New  or  affirmative,  in  answer,  deemed  denied  by  plaintiff 31 

Matters  ordinarily  determinable  at  law,  when  arising  in  suit  in  equity, 

to  be  disposed  of  therein    23 

Merits,  hearing  on — making  and  directing  interlocutory  motions,  orders, 

rules,   etc.,   preparatory   to    1 

Mesne  process: 

Issuing  and   returning    1 

Subpoena  shall  constitute  proper    7 

To  be  served  by  marshal,  deputy,  etc 15 

Misjoinder,  defense  of,  how  presented    29 

Mistakes,  clerical,  correction  of,  in  orders  and  decrees 72 

Money,  payment  of,   final  process  to  execute  decree  for    8 

Mortgages,  foreclosure  of,  decree  for  balance  due 10 

Motions: 

Interlocutory,    making    and    directing     1 

When  may  be   made    1 

Etc.,  grantable  of  course,  received  and  disposed   of  by  clerk    2 

Grantable  .of  course  by  clerk    5 

For  mesne  process  grantable  of  course  by  clerk 5 

And   applications   not   requiring   order   of  court   or   judge   grantable 

of  course  by  clerk   5 

Grantable  of  course  by  clerk  may  be  suspended,  etc.,  by  judge 5 

Requiring  notice  and  hearing,  times  and  places  for   6 

To  enlarge  time  for   filing  answer    17 

Will  not  be  granted  unless  payment  of  costs,  etc 17 

To  strike  out,  to  test  sufficiency  of  answer   33 

Motion    day     ' 6 

May  be  dispensed  with  by  senior  circuit  judge  6 

Motion  to  dismiss,  defenses  to  be  presented  in 29 

Names  of  plaintiff  and  defendant  to  be  stated  in  bill   25 

Nominal    parties 40 

Non  est  inventus,  return  of,  issuance  of  writ  of  sequestration 8 

Nonjoinder,   defense  of,  how  presented    29 

Notary   public,  verification   of  pleadings   before    36 

Notice : 

Reasonable,  of  filing  supplemental  pleading 34 

Montg. — 58. 


914.  APPENDIX 

Notice — continued.  Ruh- 

Of    orders     4 

Order  without  prior,  to  be  mailed  by  clerk  to  party,  etc 4 

Of   interlocutory   orders,   etc 6 

Defendant  to  take,  of  certain  decrees   8 

Of  motion  to  dismiss 20 

Reasonable,   of   amendment  of   answer,   by   leave,   etc 30 

Reasonable,  of  filing  supplemental  pleading 34 

To  be  given  to  parties  to  be  substituted   45 

Reasonable,  of  motion  to  enforce  answers,  etc 58 

Of   taking   testimony   before  examiner,   etc 53 

To  parties  or  solicitors  of  proceedings  before  master  60 

No  preliminary  injunction  granted  without  73 

Oath: 

May  be  made  by  plaintiff  if  special  relief  asked 25 

Stockholder's  bill  to  be  verified  by 27 

Interrogatories   to  be  signed  under    58 

Petition  for  rehearing  to  be  verified  by   60 

Affirmation   in   lieu   of    78 

Objections : 

To  defect  of  parties    43 

Tardy,   to  defect   of   parties    44 

To  evidence  taken  before  examiner,  provisions  as  to 51 

To  be  noted  by  examiner,  etc 51 

Officers  before  whom  pleadings  verified  36 

Old  rules   abrogated    81 

Omissions: 

In  orders  and  decrees  may  be  corrected  without  rehearing 72 

Of  portions  of  record  on  appeal  75 

Correction   of,   in  record  on  appeal    76 

Orders : 

When  may  be  made    1 

Award  of,  by  judge  at  chambers,  etc 1 

Interlocutory,    making    and    directing    1 

Grantable  of  course,  received  and  disposed  of  by  clerk   2 

Filed  with  clerk  to  be  noted  in  equity  docket .' 3 

Of  court  to  be  entered  in  equity  journal  3 

Made  or  passed  by  clerk,  or  judge  in  chambers,  to  be  entered  in  order 

book     3 

Made  without  notice,  to  be  mailed  by  clerk  . .  / . . 4 

Noting  of,  in  equity  docket  or  entered  in  order  book,  not  notice  to 

parties 4 

Interlocutory,  notice  of    6 

Process  to  issue  to  compel  obedience  to 7 

Mandatory,   for  specific  performance,  provision   as   to    8 

For  delivery  of  possession,  writ  of  assistance  on  refusal  to  obev   ....  9 

In  favor  of  person  not  party,  how  enforced   11 

Against  person  not  party,  how  enforced   11 


INDEX  TO  EQUITY  KULE3  915 

Orders — continued.  Rule 

That  bill  be  taken  pro  confesso  on  default    1C 

Shall  not  recite  pleadings   71 

Correction   of   clerical   mistakes    in    72 

Temporary  restraining,  and  preliminary  injunctions   73 

Justice  or  judge  may  make  order  suspending,  etc.,  injunction  pend- 
ing appeal   74 

Order  book: 

Clerk  to   keep    3 

To  contain  all  orders  made  or  passed  by  judge  in  chambers  or  by  clerk  3 

Index  of,  clerk  to  keep 3 

Entry  of  order  in,  not  notice 4 

Papers  and  orders  filed  with  clerk,  etc.,  to  be  noted  in  equity  docket..  ..  3 

Papers,  production  of,  required  by  master    62 

Parties : 

Noting  or  entry  of  order  not  notice  to    4 

Persons  not  made 25 

Generally — intervention    37 

Joinder  of    37 

Proper,  absence  of  persons  who  would  be   39 

Nominal,    appearance    of    40 

In  cases  of  joint  and  several  demands   42 

Defect  of,  resisting  objection    43 

Defect  of,  tardy  objection,  proceedings  on    44 

To  give  notice  of  taking  of  testimony  before  examiner,  etc 53 

Clerk  to  send  copies  of  interrogatories  to,  if  there  be  no  record  solicitor  58 

Notice  to,   of   proceedings   before   master    60 

Failing  to  appear  before  master   60 

May  be  examined  on  oath   by  master    62 

Accounting  before   master,   how   to  bring   in   accounts    63 

To  examine  accounting  party  viva  voce  or  upon  interrogatory 63 

Time  for  filing  exceptions  to  master's  report  by   66 

To  verify  petition   for   rehearing  by   oath    6S 

To  be  given  notice  of  preliminary  injunctions,  etc 73 

Party: 

When  order  made  in  absence  of,  clerk  to  mail  copy  4 

Heir  as,  to  execute  trusts  of  will   41 

Death   of,   revivor    45 

Procuring  reference   to  master,   payment   of   costs   by    59 

Patent  cases,  testimony  of  expert  witnesses  in   48 

Persons  not  parties,  process  on  behalf  of  and  against  11 

Person  appointed  to  serve  process  to  make  affidavit  thereof 15 

Persons  not  made  parties  to  bill   25 

Person,  non  compos,  nothing  to  be  taken  against  as  confessed 30 

Persons : 

Joining    as    parties     37 

Who  would  be  proper  parties,  absence  of 39 


916  APPENDIX 

Rulft 

Person   making  claim   before  master   examinable   by   him    65 

Petition   for   rehearing    69 

Plaintiff: 

Entitled  to  subpoena  as  of  course  when  bill  filed    32 

Time  within   which   to  take  deposition   for    47 

Plea  in  bar,  defenses  formerly  presentable  by,  to  be  made  in  answer 29 

Pleadings: 

Filing   of 3 

Technical   forms   abrogated    18 

Court  may  permit  any,  to  be  amended   19 

Further  and  particular  statement  in,  may  be  required   20 

Further   and   better   particulars   of   matters   sta.ted    in    any   may   be 

ordered 20 

Alteration  in,  on  transfer  of  action  at  law  erroneously  begun  as  suit 

in   equity    22 

To  be  signed  by   solicitors    24 

When   bill   may   be   amended   as   of   course    28 

Demurrers    and   pleas   abolished 29 

Supplemental,    permitted    when 34 

Officers  before  whom  verified   36 

Filing,  or  amendment  of,  on  substitution  of  parties 4.> 

Pleas    abolished    29 

Possession,   delivery    of,   writ   of   assistance: 

To    enforce 7 

On  refusal  to  obey  decree  for   .  .  ...V'l-^^^-Jrfi  ikt-^qv.1 •.! 9 

Powers   of  master    ...... 62 

Practice,  additional  rules  for,  by  district  court  79 

Precipe,  filing  indicating  portions  of  record  on  appeal 75 

Prayer  for  special  relief  to  be  stated  in  bill   25 

Precedence  given  to  hearing  in  cases  of  temporary  restraining  orders. ...  73 

Prejudice,  unless  material,  will  result  appellate  court  not  to  reverse  decree  46 

Preliminary   injunctions   and   temporary   restraining  orders    73 

Preparation  and  reduction  of  record  on  appeal    75 

Costs — corrections  of  omissions    ..." 76 

1'ro  confesso : 

Taking  bills,  motion  for,  grantable  of  course  by  clerk   5 

Bill  may  be  taken   when  answer  not  filed,  etc 12 

Decree —  \   t^<-] 

On   default    in   answer    16 

To  be  followed  by  final  decree   17 

Entered  if  answer  not  filed   29 

Proceedings  before  master: 

Speeding  of    60 

Powers    in    62 

Process : 

Mesne  and   final,  issuing  and   returning    1 

Award  of,  by  judge  at  chambers,  etc ] 

Issuing  and  return  of   1 


INDEX  TO  EQUITY  RULES  917 

Process — continued.  Rule 

Issued  and  returns  thereon  to  be  noted  in  equity  docket 3 

-,      For  taking  bills  pfo  confesso  grantable  of  course  by  clerk 5 

Mesne  or  final,  to  enforce  and  execute  decrees  grantable  of  course  by 

clerk 5 

Mesne  and  final,  denned   7 

In  behalf  of  and  against  person  not  parties    11 

By  whom  served 15 

Mesne  and  final  to  be.  served  by  marshal,  deputy,  etc 15 

May  be  served  by  person  appointed  therefor 15 

Court  may  permit  any  process  to  be  amended   19 

Additional  rules  as  to,  by  district  court   70 

Prochein  ami  may  sue  for  infants 70 

Production  of  books,  papers,  etc.,  may  be  required  by  master   62 

Publication  of  deposition,  when  filed 55 

Questions,  competency,  materiality,  or  relevancy  of,  not  to  be  decided  by 

examiner     51 

Record : 

Court  may  permit  any  record  to  be  amended . . .  10 

How  evidence  to  be  stated  in   75 

Appellant's  statement  as  to  record  on  appeal  to  become  part  of 75 

On  appeal — 

Indicating   portions   of    75 

Additional    portions,    how    indicated 75 

Reduction    and    preparation    75 

Difference    as    to    75 

Reduction  and  preparations — costs — correction  of  omission    ....  76 

Agreed    statement    77 

Reduction  and  preparation  of  record  on  appeal   75 

Costs — corrections    of    omissions    7fi 

Reference  to  master — exceptional,  not  usual   50 

Rehearing : 

Petition  for,   provisions  as  to    ' 60 

Correction  of  clerical  mistakes  in  orders  and  decrees  without  ......  72 

Reinstatement    of    causes,    continued    57 

Relevancy  of  questions  not  to  be  decided  by  examiner,  etc 51 

Relief: 

Special,  prayer  for,  to  be  stated  in  bill    25 

To  be  verified  by  oath  of  plaintiff,  etc 25 

Reply : 

When  required — when  cause  at  issue   31 

None  required   unless  answer  asserts  set-off  or  counterclaim   31 

Report : 

Master's — 

To    court    60 

Documents  to  be  identified  but  not  set  forth   61 

Of  master — 

Exceptions,    hearing    66 

Costs  on  exceptions  to   67 

Not   to   be   recited    in   decree   or   order    .  71 


918  APPENDIX 

Rule- 

Representatives  of  class  may  sue  or  defend    38 

Residence  and  citizenship  of  each  party  to  be  stated  in  bill   25 

Restraining  orders,  temporary,   and   preliminary   injunctions    73 

Returns  on  process  to  be  entered  on  equity  docket  3 

Return : 

Of    subpoena    not   executed    14 

Of  master's  report — exceptions — hearing   66 

Revivor : 

Bills  of,  what  necessary  in 35 

On  death  of  party   45 

Rights,   substantial,   court  to   disregard   error   or    defect    in   proceedings 

which   does   not   affect    19 

Rules : 

When  they  may  be  awarded   1 

Interlocutory,    making    and    directing    1 

Award  of,  by  judge  at  chambers,  etc 1 

Grantable  of  course,   received   and  disposed  of  by  clerk    2 

Additional,  by  district  court 7J> 

When   effective    81 

Old,  abrogated    81 

Sale,  amount  due  above  proceeds  of  decree  for  :, . .  . .  10 

Scandal    and   impertinence    21 

Scandalous  matter,   signature  of  solicitor,  certificate  that  none   inserted 

in    pleading     24 

Sequestration,  writ  of: 

Proper  process  if  defendant  not  found  7 

Against  estate  of  delinquent   8 

Person  other  than  disobedient  party  to  comply  with  mandatory  order 

for  specific  performance   8 

Service  of  subpoena  by  delivery  of  copy,  etc 13 

Set-off  to  be  stated  in  -answer   30 

Set-off  to  be  replied  to- 31 

Signatures,  pleadings  to  be  signed  by  solicitors  of  record    24 

Solicitors : 

Noting  or  entry  of  order  not  notice  to 4 

Of  record — 

To  sign  every  pleading  24 

To  be  furnished  copy  of  amended  bill 28 

Clerk  to  send  copies  of  interrogatories  to   58 

Notice   to,    of    proceedings    before    master    60 

Offending,  imposition  of  costs  on    76 

To  file  precipe  indicating  portions  of  record  on  appeal   75 

Specific  performance,  by  some  other  person  than  disobedient  party   ....  8 

Standing  masters  in  chancery,  courts  may  appoint    68 

Statement : 

Further  and  particular  in  pleading  may  be  required   20 

Agreed  as  to  record  on  appeal    77 

Stenographer — appointment — fees     50 

Stockholder's    bill    27 


INDEX  TO  EQUITY  KULES  919 

Subpoena :  Rule 

Shall    constitute   proper   mesne   process,    etc 7 

Issue  of,   time  for   answer    12 

To  issue  when  bill  filed  and  not  before    12 

To  contain  names  of  parties   12 

When   returnable    12 

Memorandum  at  bottom  thereof 12 

Joint,  against  more  than  one  defendant 12 

Separately,  for  each  defendant  when  against  more  than  one 12 

Manner   of   serving    13 

Not  executed,  provision  as  to 14 

Alias     14 

Substitution  of  proper  parties  by  revivor   45 

Sufficiency  of  defense,  how  tested  . .33 

Suits: 

Papers  filed,  process  issued,  etc.,  to  be  noted  on  equity  docket 3 

To  execute  trusts  of  will — heir  as  party   41 

By   or   against   incompetents    70 

Supplemental  pleading,  when  may  be  filed   34 

Supreme  Court,  if  appeal  lies  to,  rehearing  not  granted  after  term 69 

Sundays : 

Clerk's  office  not  open    2 

And  holidays — computation  of  time   80 

Temporary   restraining  orders  and  preliminary  injunctions    73 

Term: 

Awarding  process,  commissions,  orders,  rules,  etc.,  by  judge  at  cham- 
bers, etc.,  in 1 

Orders,  decrees,  etc.,  of  court  to  be  entered  in  equity  journal 3 

Rehearing  not  granted  after,  if  appeal  lies   69 

Testimony : 

Usually  to  be  taken  in  open  court  at  trial 46 

Of  expert  witnesses  in  patent  and  trade-mark  cases    48 

May  be  taken  down  by  stenographer 50 

To  be  signed  by  witness  51 

Of  witnesses  before  examiner  to  be  read  to  him   51 

Contempt  of  court  for  refusal  of  witness  to  give  testimony  before 

commissioner,   examiner,   etc ; 52 

Notice  of  taking  before  master  or  examiner   ( 53 

No  further  by  deposition  to  be  taken  after  case  goes  on  trial  calen- 
dar, except,  etc 56 

How  stated  in  record  on  appeal   75 

Testing    sufficiency    of   defense    33 

Time: 

Enlargement  of — 

For  full  compliance  with  decree 8 

To  file  answer    16 

On  expiration  of,  for  depositions,  case  on  trial  calendar   56 

Computation  of — Sundays  and  holidays   80 

Trade-mark   cases,  testimony  of   expert  witnesses   in    48 


920  APPENDIX 

Transcript:  Rule 

Cost  of,  to  be  advanced  by  party  ordering   50 

Of  evidence  before  examiner  not  to  include  argument 51 

On  appeal — 

Indicating    portions    of 75 

Supplemental,  correction  of,  omissions  by    76 

Transfer  of  action  at  law  erroneously  begun  as  suit  in  equity 22 

Trial: 

Testimony    usually   taken    in    open   court,    rulings   on    objections   to 

evidence 46 

Calendar,  on  expiration  of  time  for  depositions  case  goes  on 56 

Trials,  separate — court  may  order  separate  trials  of  joint  actions 26 

Trustee  as  party    37 

Vacation,  awarding  process,  commissions,  orders,  rules,  etc.,  by  judge  at 

chambers  in   1 

Value,  averments  in  bill  other  than  of,  if  not  denied,  deemed  confessed . .  30 
Verification : 

Bill  to  be  verified  by  oath  if  special  relief  asked   25 

Of  pleadings,  officers  before  whom  taken 36 

Petition  for  rehearing  to  be"  verified  by  oath,  etc 69 

Viva  voce,  master  may  examine  persons  before  him 65 

Vouchers,  production  of,  required  by  master  62 

Will,  execution  of  trusts  of — heir  as  party .  41 

Witnesses : 

Testimony  usually  to  be  taken  in  open  court   46 

Depositions  of,  may  be  taken  when 47 

Testimony  of  expert  in  patent  and  trade-mark  cases   48 

Before  examiners,  etc.,  cross-examination   of,  etc 4^ 

Testimony  of — 

To  be  read  to   51 

To  be   signed   by    51 

Refusing  to  sign  testimony   50 

Expense  of  taking  deposition  of,  to  be  advanced  by  party  calling.  ...  50 

Attendance  of  before  commissioner,  etc 52 

Refusing  to  appear  before  commissioner,  master,  or  examiner 52 

Compensation    of,    for    attendance   before    commissioner,    master,    or 

examiner     52 

May  be  examined  orally  before  court,  or  cross-examined   before  ex- 
aminer, etc.,  when  no  notice  of  deposition  given 54 

Testimony  of,  by  deposition,  after  case  goes  on  trial  calendar   56 

May  be  examined  on  oath   by  master    ..." ' 62 

Testimony  of,  how  stated  in  record,  on  appeal    75 

Writing,  call  for  admission  of  execution  or  genuineness  of    58 

Writings,  production  of  required  by  master    62 


INDEX. 

References  are  to  Sections. 


A. 
ABSENT, 

defendants,  venue,  §  166. 

ACCUSED, 

see  that  subhead  under  heading  Criminal  Procedure. 

ACKNOWLEDGMENTS,  §  714. 

i 

ACTIONS, 

at  law,  see  Law  Actions — Summarized,  ch.  18. 

criminal  prosecutions,  see  Criminal  Procedure,  ch.  42. 

in  equity,  see  Equity  Suits — Summarized,  ch.  29. 

for  neglect  to  prevent  conspiracy  against  civil  rights,  limitations,  §  409. 

motion  to  transfer  from  equity  to  law  side,  §  936. 

ADJOURNMENTS, 

see  also  Continuances. 

absence  of  district  judge,  §  63. 

criminal  cases,  monthly,  to  expedite,  §  66. 

district  courts,  absence  of  judge,  §  63. 

law  actions,  §  586. 

Supreme   Court,   §   2457. 

ADMIRALTY, 

summary  of  several  jurisdictional  provisions,  §  360. 

C.  C.  A.  rules  follow  Addenda  Rule  45  C.  C.  A.  Appendix. 

ADMISSIBILITY, 

of  evidence  in  equity  suits,  §  1003. 

ADMISSION  TO  PRACTICE, 

circuit  court  of  appeals,  §  2408. 
Rule  7,  C.  C.  A.  Appendix, 
court  of  claims,  §  2302. 
district  court,  §  71. 
Supreme  Court,  §  2455. 

921 


922'  INDEX 

AFFIDAVIT, 

amendment  of  attachment,  conforms  to  state  law,  §  616. 
experts,  patent  and  trademark  cases,  §§  1001,  1005. 

AGENT, 

extradition  from  foreign  country,  powers  of,  §  2193. 

AGGREGATING, 

amounts  in  controversy  to  create  jurisdiction,  §  268. 

AGRICULTURE, 

jurisdiction  district  court,  §  196. 

ALABAMA, 

districts,  terms  and  places  of  holding  courts,  §  101. 

ALASKA, 

appeal  and  error  to  circuit  court  of  appeals,  §§  2035,  2036. 

appeal  and  error  to  Supreme  Court,  §  2015. 

certification  of  questions  to  Supreme  Court  from  ninth  circuit,  §  842. 

certiorari,  ninth  circuit  to  Supreme  Court,  §  2082. 

district  court,  procedure  on  appeal  to  Supreme  Court,  §  2076. 

ALIAS, 

subpoena,  see  Subpoena,  §  914. 

ALIENS, 

claims  of,  court  of  claims,  §  2307. 

diverse  citizenship  of,  §  242. 

enemies — jurisdiction  district  court,  §  197. 

same,  duties  of  marshal,  §  198. 

Federal  officers,  suits  against,  removal  of  causes,  §  301. 
habeas  corpus  in  removal  suits  against  Federal  officers,  §  303. 
removal  of  causes,  suits  against  Federal  officers  by,  §  301. 
state  against,  in  Supreme  Court,  §  2458. 
summary    of   several   jurisdictional   provisions    affecting   suits    in    which 

aliens  are  parties,  §§  358,  373. 
Supreme  Court,  as  parties  in,  §  2458. 
tort  actions,  summary  of  several  jurisdictional  provisions,  §  373. 

ALLOWANCE, 
appeal,  §  2058. 

circuit  court  of  appeals,  Rule  35  C.  C.  A.  (2d  circuit)   Appendix, 
habeas  corpus,  writ  of,  §  2205. 
interest,  judgment  law  actions,  §  783. 
writ  of  error,  §  827. 

AMBASSADORS, 

suits  against,  in  Supreme  Court,  §  2458. 


INDEX  923 


AMENDED  BILL, 

time  to  answer,  §  868. 

AMENDMENT, 

affidavit  for  attachment,  §  617. 

amount  in  controversy,  shown  by,  §  269. 

answer  in  equity,  §  976. 

attachment  affidavit,  §  617. 

attachment  writ,  §  619. 

bill  in  equity,  §  904. 

counterclaim  in  equity,  §  976. 

defect  in  parties,  §  905. 

death  of  party,  §  906. 

death  of  party,  bill  in  equity,  §  906. 

defensive  pleading  at  law,  §  676. 

habeas  corpus  return,  §  2210. 

judgment  law  actions,  §  789. 

law  actions,  §  585. 

process  at  law,  §  653. 

set-off  in  equity,  §  976. 

supplemental  answer  in  equity,  §  979. 

verdict,  §  762. 

writ  of  attachment,  §  619. 

writ  of  error,  §  828. 

AMOUNT  IN  CONTROVERSY, 

aggregating  to  create  jurisdiction,  §  268. 

amendment  to  show,  §  269. 

costs  and  fees,  as  affecting,  §  536. 

denned,  §  264. 

diverse  citizenship   involved,   §   230. 

effect  of  valid  set-off  or  payment.  §  267. 

Federal  question  involved,  §  223. 

general  statement,  §  260. 

good  faith  an  issue,  §  271. 

immaterial,  when,  §  263. 

includes  what,  §  266. 

issue,  how  raised,  §  271. 

jurisdiction,  aggregating  amounts,  how  affects,  §  268. 

jurisdiction,  how  affected,  ch.  9. 

land  grant  cases,  §  262. 

materiality  of,  §  261. 

materiality  of,  land  grant  cases,  §  262. 

when  not  an  issue,  §  263. 
payment,  effect  of,  §  267. 
pleading  of,  §  265. 

raising  issue  as  to  amount  or  good  faith,  §  271. 
set-off,  effect  of,  §  267. 
splitting  demand,  state  statutes  do  not  control,  §  270. 


924  INDEX 

AMOUNT  IN  CONTROVERSY— continued. 

stated  in  declaration  or  bill  controls  unless  pleaded  erroneously  or  in  bad 

faith,  §  265. 

summary,  see  heading  ''Summaries — Jurisdiction,  Amount,  etc."  ch.   12. 
what  included,  §  266. 
what  is,  §  264. 

ANSWER  IN  EQUITY,  ch.  34. 
amendments  to,  §  976. 
attacks  upon,  §  978. 
certainty  in,  motion  for,  §  978. 
contents  of,  §  973. 
counterclaim  in,  §§  980-1-2-3. 
cross-bill,  matter  of,  contained  in,  §  982. 
definiteness  in,  motion  for,  §  978. 
discovery,  §  975. 
effect  of,  §§  970-1. 

effect  of  failure  to  plead  counterclaim  or  set-off,  §  983. 
evidence,  is  not,  §  971. 
form  of,  §  974. 
general  statement,  §  970. 

impertinent  matter  in,  motion  to  strike,  §  078. 
independent  suit  in  counterclaim,  §  981. 
irrelevant  matter  in,  motion  to  strike  out,  §  978. 
issue,  §  979. 

motion  to  make  more  definite  and  certain,  §  978. 
motion  to  strike  out  counterclaim  or  set-off,  §  978. 

motion  to  strike  redundant,  impertinent,  or  scandalous  matter  in,  §  978. 
pleading,  ch.  34. 

redundant  matter  in.  motion  to  strike,  §   978. 
reply,  when  required,  §  979. 
scandal  in,  motion  to  strike,  §  978. 
set-off  pleaded  in,  §§  980-1-2-3. 
supplemental,  §  977. 
time  for,  §§  865-972. 

time  for,  after  overruling  motion  to  dismiss,  §  867. 
time  for,  to  amended  bil>,  §  868. 

ANTI-TRUST  LAWS. 

witnesses,  immunity  under,  §  474. 

APPEAL, 

Alaska  district  court  to  circuit  court  of  appeals,  §§  2035-6. 
Alaska  district  court  to  Supreme  Court,  §  2015. 
allowance  of,  §  2058. 

circuit  court  of  appeals,  Rule  35  C.  C.  A.   (2d  circuit)   Appendix, 
assignment  of  errors,  §  2059. 

China,  United  States  court  for,  to  circuit  court  of  appeals,  §  2034. 
circuit  court  of  appealn. 

bankruptcy  cases,  Rule  45  C.  C.  A.   (8th  circuit)    Appendix. 


INDEX  925 


APPEAL — continued. 

instructions  as  to  taking,   Addenda  Rule  45  C.  C.  A.  Appendix. 

rules  as  to  taking,  Rule  14  C.  C.  A.  Appendix. 

to  Supreme  Court,  §  2009. 
citation  on,  §  2060. 
court  of  claims,  §  2332. 
court  of  claims  to  Supreme  Court,  §  2012. 
court  customs  appeals,  time  for,  §  2200. 
dismissal  of,  §  2084. 
court  of  claims,  §  2332. 
court  of  claims  to  Supreme  Court,  §  2012. 
court  customs  appeals,  time  for,  §  2260. 
dismissal  of,  §  2084. 

district  court  to  circuit  court  of  appeals,  §  2031. 
district  court  direct  to  Supreme  Court,  §  2001. 
District  of  Columbia  to  Supreme  Court,  §  2018. 
duties  of  judges  on,  §  2037. 

Hawaii  supreme  court  to  United  States  Supreme  Court,  §  2014. 
instructions  as  to  taking  to  circuit  court  of  appeals,  Addenda   Rule  45 

C.  C.  A.  Appendix. 

interlocutory  orders  district  court,  §  2032. 
injunction  against  enforcement  of  state  laws,  §  1065. 
injunction  pending,  §   1061. 
parties   in,   §   2051. 

Philippine  Islands  to  Supreme  Court,   §  2016. 
Porto  Rico  courts  to  Supreme  Court,  §  2013. 
powers  of  judge  in,  §  2037. 

procedure  in  circuit  court  of  appeals,  §  2057. 

receivership  proceedings  district  court  to  circuit  court  of  appeals,  §  2032. 
return,  time  for,  §  2072. 

sentences  prize  cases  to  Supreme  Court,  §  2004. 
Supreme  Court  from  circuit  court  of  appeals,  §  2009. 
time  for  appeals. 

circuit  court  of  appeals  to  Supreme  Court,  §  2055. 

district  court  to  circuit  court  of  appeals,  §  2053. 

district  court  to  Supreme  Court,  §  2052. 

from  interlocutory  orders,  §  2054. 

return  of,  §  2072. 


APPEARANCE, 

bond  on   writ  of  error   in   criminal   cases,   Addenda   Rule  45   C.   C.   A. 

Appendix. 

defensive  pleading  at  law,  ch.  22. 
defensive  pleading  in  equity,  chs.  32,  33. 
special,  to  quash  process,  §  657. 


926  INDEX 

APPELLATE, 

jurisdiction  at  law,  chs.  39,  40. 

circuit  court  of  appeals,  see  Appellate  Jurisdiction  Circuit  Court  of 

Appeals,  ch.  40. 

district  court,  see  Appellate  Jurisdiction  District  Court,  ch.  6. 
in  equity,  chs.  39-40. 

Supreme  Court,  see  Appellate  Jurisdiction  of  the  Supreme  Court,  ch.  39. 
procedure. 

at  law,  see  Appellate  Procedure  at  Law,  chs.  11-28. 

in  equity,  see  Appellate  Procedure  in  Equity,  ch.  42. 

APPELLATE  JURISDICTION  DISTRICT  COURT. 

awards  of  consuls,  §  204. 
Chinese  exclusion  laws,  §  202. 
consular  awards,  §  204. 
general  statement,  §  190. 
Yellowstone  National  Park,  §  203. 

APPELLATE  JURISDICTION  OF  CIRCUIT  COURT  OF  APPEALS,  ch.  40. 
Alaska,  appeal  and  error  from  district  court  in,  §§  2035-6. 
appeal. 

Alaska,  district  court,  §§  2035-6. 

China,  United  States  court,   §  2034. 

district  court,  §  2031. 

duties  of  judge  on,  §  2037. 

interlocutory  orders  district  court,  §  2032. 

powers  of  judge  on,  §  2037. 

receivership  proceedings,  §  2032. 
bankruptcy,  §  2033. 
China,  United   States  court,   §   2034. 
district  court. 

appeal  and  error  to  circuit  court  of  appeals,  §  2031. 

appeals  interlocutory  orders,  §  2032. 

appeals  receivership  cases,  §  2032. 
general  statement,  §  2030. 
injunctions,  §  2032. 

judges,  powers  and  duties  on  appeal,  §  2037. 
receivership,  §  2032. 
writ  of  error. 

Alaska  district  court,  §§  2035,  6. 

China,  United  States  court,  §  2034. 

district  court,  §  2031. 

APPELLATE  JURISDICTION  OF  THE  SUPREME  COURT,  ch.  39, 

Alaska,  appeal  and  error,  §  2015. 

appeal,  see  that  heading. 

bankruptcy  appeahs,  §  2020. 

certification  from  circuit  court  of  appeals,  §  2011. 

certiorari  to  circuit  court  of  appeals,  §  2010. 


INDEX  927 

APPELLATE  JURISDICTION  OF  THE  SUPREME  COURT— continued, 
circuit  court  of  appeals,  appeal  and  error,  §  2009. 
constitution,  cases  involving  construction,   §  2005. 
constitutionality  Federal  law  or  treaty,  §  2006. 
court  of  claims,  appeals  from,  §  2012. 
district  court,  appeal  direct,   §  2001. 

District  of  Columbia  court  of  appeals,  appeal  and  error,  §§  2018,  2019. 
Federal  laws  drawn  in  question,  §  2006. 
general  statement,  §  2000. 
Hawaii,  appeal  and  error,  §  2014. 
jurisdiction,  what  is  question  of,  §  2002. 
jurisdiction,    rules    determining    between    circuit    court    of    appeals    and 

Supreme  Court,  §  2003. 

mandamus  to  revise  and  correct  proceedings  of  lower  courts,  §  2021. 
Philippine  Islands,  appeal  and  error,  §  2016. 
Porto  Rico,  appeal  and  error,  §  2013. 
prize  cases,  §  2004. 

state  law  contravening  Constitution,  §  2007. 
territory,  after  admission,  §  2017. 
treaty  drawn  in  question,  §  2006. 
writ  of  error,  see  that  heading. 

APPELLATE  PROCEDURE  AT  LAW,  ch.  28, 

Alaska,  certification  to  Supreme  Court  from  ninth  circuit,  §  842. 
allowance,  writ  of  error,  §  827. 
amendment,  writ  of  error,  §  828. 
assignment  of  errors,  §  830. 
bond,  §  832. 

nonrequirement  of  government,  §  832. 
certification,  question  of  law,  §  840. 

from  Alaska  supreme  court  from  ninth  circuit,  §  842. 

from  circuit  court  of  appeals  to  Supreme  Court,  §  840. 
certiorari,  §  840. 
circuit  court  of  appeals,  writ  of  error. 

district  court  to,  time  for,  §  823. 

procedure,  §  826. 

summary  of  procedure,  §  839. 

Supreme  Court  to,  §  824. 

time  for,  from  district  court,  §  823. 

time  for,  to  Supreme  Court,  §  824. 
citation,  §  831. 
costs,  §  845. 
damages,  §  845. 
district  court. 

circuit  court  of  appeals,  time  for,  §  823. 

Supreme  Court,  time  for,  §  822. 
fact,  no  reversal  for  error  in,  §  844. 
filing  record  on  error,  §  837. 
general    statement,    §    820. 


928  INDEX 

APPELLATE  PROCEDURE  AT  LAW— continued. 

issuance  of  writ  of  error  to  Supreme  Court,  §  829. 
parties  to  writ,  §  821. 
preparation  of  record,  §  837. 
proceedings  in  forma  pauperis,  §  835. 
procedure. 

appellate  court  after  transcript  filed,  §  843. 

district  court  to  circuit  court  of  appeals,  826. 

summaries,  §  839. 

territories,  §  841. 
record,  §  836. 
reduction  of  record,  §  837. 

reversal  not  allowed  for  error  in  facts,  §  844. 
state  court,  time  for,  §  825. 
summary   of   procedure,   §   839. 
supersedeas,  §  834. 
Supreme  Court,  writ  of  error  to, 

certification  of  questions  of  law,  §§  840-842. 

circuit  court  of  appeals,  time  for,  §  824. 

district  court,  time  for,  §  822. 

procedure,  §  839. 
territories,  §  841. 
time. 

return  of  writ  of  error,  §  838. 

writ  of  error  circuit  court  of  appeals  to  Supreme  Court,  §  824. 

writ  of  error  district  court  to  circuit  court  of  appeals,  §  823. 

writ  of  error  district  court  to  Supreme  Court,  §  822. 

writ  of  error  to  state  court,  §  825. 

APPELLATE  PROCEDURE  IX  EQUITY, 
Alaska,  certiorari  to  courts  of,  §  2082. 

district  court  of,  to  United  States  Supreme  Court,  §  2076. 
allowance  of  appeal,  §  2058. 
assignment  of  errors,  §  2059. 
bond  on  appeal. 

generally,  §  2061. 

none  required  by  United  States,  §  2062. 
certification  to  Supreme  Court. 

by  circuit  court  of  appeals,  §  207-3. 

by  District  of  Columbia  court  of  appeals,  §  2080. 
certiorari. 

Alaska,  cases  in,  §  2082. 

circuit  courts  of  appeals,  by,  §  2074. 
circuit  courts  of  appeals. 

certification  to  Supreme  Court,  §  2075. 

certiorari  to,  §  2074. 

death  of  party— effect  of,  §§  2090-2091. 

filing  record.  §  2069. 

in  general.  §  2057. 


INDEX  929 

APPELLATE  PROCEDURE  IN  EQUITY— continued. 

printing  record,  §  2069. 

record  in,  as  part  of  transcript,  §  2070. 

time  for  appeal. 

from  district  courts,  §  2053. 
from  interlocutory  orders,  §  2054. 
to  Supreme  Court,  §  2055. 
citation  on  appeal,  §  2060. 
death  of  party,  effect  of. 

after  judgment — before  appeal,  §§  2087-2089. 

pending  appeal  to  Supreme  Court,  §§  2088-2089. 

pending  appeal  to  circuit  court  of  appeals,  §§  2090-2091. 
differences  law  and  equity,  §  6. 
diminution  of  record,  §  2085. 

district  appeal  to  Supreme  Court,  one  record  suffices  both  parties,  §  2071 
dismissal  of  appeals,  §  2084. 
district  courts. 

time  for  appeal  from,  to  circuit  courts  of  appeals,  §  2053. 

time  for  appeals  from,  to  Supreme  Court,  §  2052. 
district  court  of  Alaska  to  Supreme  Court,  §  2076. 
district  court  of  Porto  Rico  from,  §  2077. 
District  of  Columbia  court  of  appeals. 

appeals  from,  or  writs  of  error  to,  §  2079. 

certification  to  Supreme  Court,  §  2080. 
equity  rules — preparation  of  record  under,  §  2068. 
errors,  assignment  of,  §  2059. 
error,  writ  of. 

time  for,  state  to  Supreme  Court,  §  2055. 

time  for  return  of,  §  2072. 

filing  record  on  appeal  in  circuit  court  of  appeals,  §  2069. 
final   decisions. 

court  of  appeals,  review  by  certiorari,  §  2074. 
forma  pauperis — proceeding  in,   §  2065. 
general  statement,  §  2050. 

Hawaii,  supreme  court  of,  to  United  States  Supreme  Court,  §  2081. 
injunction  pending  appeal,  §  2064. 
interlocutory  orders,  time  for  appeal  from,  §  2054. 
mandate,  §  2086. 

orders,  interlocutory,  time  for  appeal  from,  §  2054. 
parties  on  appeal,  §  2051. 
Philippines,  from  supreme  court  of,  §  2078. 
Porto  Rico,  from  supreme  and  district  courts  of,  §  2077 
preparation  of  record,  §§  2067,  2068. 
printing  record  on  appeal. 

to  circuit  court  of  appeals,  §  2069. 

to  Supreme  Court,  §  2070. 
record,  diminution  of,  §  2085. 

Montg. — 59. 


930  INDEX 

APPELLATE  PROCEDURE  IN  EQUITY— continued, 
record  on  appeal, 

one  record   sufficient  when   both   parties   appeal   direct  to   Supreme 
Court,  §  2071. 

printing  and  filing,  circuit  court  of  appeals,  §  2069. 

printing  and  filing,  Supreme  Court,  §  2070. 

reduction  and  preparation  of,  §§  2067,  2068. 
reduction  of  record  on  appeal,  §§  2067,  2068. 
representatives  of  deceased  party. 

procedure  when  not  within  jurisdiction  of  Supreme  Court,  §§  2089, 

2091. 

review  by  certiorari,  §  2074. 

review  of  state  court  decisions,  time  for,  §  2056. 
state  courts. 

review  of  decisions  of,  time  for,  §  2056. 

see  title  state  courts, 
summary  of,  §  2073. 
Bupersedeas,  §  2063. 
Supreme  Court. 

Alaska  district  court,  to,  §  2076. 

certification  to,  §  2075. 

death  of  party  pending  appeal  to,  §  2089. 

printing  of  record,  §  2070. 

reduction  of  record,  §§  2067,  2068. 

time  for  appeal  to. 

from  circuit  court  of  appeals,  §  2055. 
from  district  court,  §  2052. 

transcript  of   circuit  court  of  appeals   record   as   part   of   record   in 

Supreme  Court,  §  2070. 
time  for  appeal. 

circuit  court  of  appeal  to  Supreme  Court,  §  2055. 

district  courts  to  circuit  courts  of  appeal,  §  2053. 

district  courts  to  circuit  courts  of  appeal,  from  interlocutory  orders, 
§  2054. 

district  court  to  Supreme  Court,  §  2052. 

review  of  state  court  decisions,  §  2056. 

time  for  writ  of  errors,  Supreme  Court  to  state  courts,  §  2056. 
time  for  return  of  writ  of  error,  §  2072. 

of  appeal,  §  2072. 
transcript  in  appeal,  §  2066. 

see  also  Record  on  Appeal. 
United  States,  no  bond  required  of,  §  2062. 
writ  of  error. 

state  courts  to  Supreme  Couit,  time  for,  §  2056. 

time  for  return  of,  §  2072.. 

APPELLATE  REVIEW, 

state  court,  §  33,  ch.  11. 


INDEX  931 

APPLICATION, 

habeas  corpus,  how  made,  §  2204. 

writs  of  certiorari  under  §  240  Judicial  Code,  Addenda,  Rule  45  C.  C.  A. 
Appendix. 

APPOINTMENT, 

masters  in  chancery,  §  1030. 
revocation  of,  of  outside  judges,  §  27. 

APPOINTMENT  OF  DISTRICT  JUDGE, 
accumulation  of  business,  §  25. 
change  of,  §  27. 
chief  justice's,  §  26. 
disability  of  incumbent,  §  24. 

APPRAISAL, 

fees  of  appraisers  on  execution  sale,  §  559. 
personal  property  on  execution,  §  804. 

APPRAISERS, 

board  of  general,  §  2251. 
fees  on  execution  sales,  §  559. 

ARBITRATION, 

common  carriers  and  employees,  jurisdiction  district  court,  §  212. 

ARGUMENT  LISTS, 

rule  18,  3d  circuit  under  Rule  17  C.  C.  A.  Appendix. 

ARGUMENTS, 

circuit  court  of  appeals,  Rule  25   C.  C.  A.  Appendix. 

Rule  19  C.  C.  A.   (3d  circuit)  Appendix. 

Rule  23  C.  C.  A.  (6th  circuit)  Appendix. 

Rule  41  C.  C.  A.  (8th  circuit)  Appendix, 
printed,  circuit  court  of  appeals,  form  of  Rule  26  C.  C.  A.  Appendix. 

ARIZONA, 

districts,  terms  and  places  of  holding  court,  §  103. 

ARKANSAS, 

districts,  terms  and  places  of  holding  court,  §  102. 

ARREST, 

discharge  from,  conforms  to  state  laws,  §  797. 

extradition,  fugitive  from  foreign  country,  §  2180. 

offenders  against  United  States,  §  2126. 

prisoner  to  be  taken  to.  nearest  judicial  officer,  §  2127. 

seaman  deserting  foreign  vessel,  §  2197. 

same,  jurisdiction  district  court,  §  206. 


932  INDEX 

ASSIGNEE, 

of  debenture  for  drawback  of  duties,  summary  of  several  jurisdictional 
provisions,  §  368. 

ASSIGNMENT, 

cases  for  hearing,  circuit  court  of  appeals,  Rule  35  C.  C.  A.   (5th  &  9th 

circuit)  Appendix, 
district  judges. 

accumulation  of  business,  §  25. 

disability  of  incumbent,  §  24. 

by  chief  justice,  §  26. 

change  of,  §  27. 

circuit  judge  for  district  judge,  §  28. 
errors,  §§  830,  2059. 

errors  circuit  court  of  appeals,  Rule  11  C.  C.  A.  Appendix, 
judges  circuit  court  of  appeals,  Rule  36  C.  C.  A.   (5th  circuit)   Appendix, 
jurisdiction  of  district  court  by,  §  195. 

ASSISTANT, 

clerks,  §  2254. 

court  of  customs  appeals,  §  40. 
district  attorneys,  §  32. 
marshal  Supreme  Court,  §  2453. 

ASSOCIATE  JUSTICES, 

Supreme  Court,  order  of  precedence,  §  2450. 

ATTACHMENT,  ch.  20. 

affidavit,  amendment  of,  §  617. 

conforms  to  state  law,  §  616. 
bond,  §  618. 

causes  of  action  governed  by  state  law,  §  614. 
delivery  bond,   §  622. 
dissolution  of,  §  624. 
law  actions,  §  582,  ch.  20. 
lien,  §  620. 

national  banks  exempt,  §  610. 
postal  suits,  §  625. 

application   for  warrant,   §   626. 

issuing  warrant,  §  627. 

ownership  of  property,  trial,  §  628. 

proceeds  of  sale,  investment,  §  62!). 

publication  of  warrant,  §  630. 

discharge  of  warrant,  §  632. 

does  not  affect  adoption  of  state  laws,  §  633. 
priorities  of  several,  §  621. 

property  subject  to,  governed  by  state  law,  §  615. 
provisional  remedy  only,  §  613. 
substituted  service  cannot  be  based  upon,  §  613. 


INDEX  933 

ATTACHMENT— continued. 

state  laws,  adoption,  §§  610,  611. 
state  laws,  construction  followed,  §  612. 
third  party  claims,  §  623. 
writ,  amendment,  §  619. 

ATTACKS, 

see  Objections. 

ATTENDANCE, 

depositions  de  bene  esse,  witnesses.  §  508. 
under  commission,  witnesses,  §  516. 
under  commission,  exemption  from,  of  witnesses,  §  515. 
to  be  used  in  foreign  country,  witnesses,  §  524. 
enforcing  of  witnesses'  deposition  de  bene  esse,  §  508. 
under  commission,  §  516. 

deposition  to  be  used  in  a  foreign  country,  §  524. 
exemption  of  witness,  deposition  under  commission,  §  515. 
witness. 

deposition  de  bene  esse,  §  508. 
under  commission,  §  516. 
for  foreign  country,  §  524. 

exemption  from  deposition  under  commission,  §  515. 
witnesses. 

enforcing  generally,  §  486. 

claim  in  departments,  §  495. 
patent  cases,  §  492. 
interstate  commerce  act,  §  497. 
for  the  United  States,  §  484. 
subpoena  for,  see  Subpoana. 

ATTORNEYS, 
admission  of. 

circuit  court  of  appeals,  Rule  7  C.  C.  A.  Appendix. 

court  of  claims,  §  2302. 

district  court,  §  71. 

Supreme  Court,  §  2455. 
fees  of,  §  539. 

civil  rights  cases,  fees  of,  §  544. 
liability  for  costs  vexatiously  increased,  §  540. 

AUTHORITY, 

removal  by  writ  of  error  decision  in  state  court  against  validity  of,  §  335. 
removal  by  writ  of  error  to  state  court  of  decision  against  right,  title, 
privilege,  or  immunity  claimed  under  Federal,  §  337. 

AWARDS  OF  CONSULS, 

appellate  jurisdiction  district  court,  §  204. 


934  INDEX 

B. 

BAIL, 

admitted,  capital  cases,  when,  §  2130. 

admitted  in  cases  not  capital,  §  2129. 

calling  in  Kentucky,  §  2231. 

committing  defendant  who  has  given  such  in  another  district,  §  2229. 

criminal  cases  removed  by  writ  of  error  from  state  court,  §  2131. 

custom  laws,  property  seized,  §  2227. 

de  bene  esse  by  clerks  in  absence  of  judges,  §  2232. 

error  proceedings,  Rule  15  C.  C.  A.    (3d  circuit),  Appendix. 

holding  defendant  until  final  judgment  in  first  suit,  §  2230. 

new,  as  better  security,  §  2133. 

offenders  against  United  States,  §  2126. 

photograph  of   Chinese  to  be  attached  to  bond,   Rule  37   C.   C.  A.    (9th 

circuit),  Appendix, 
special,  suits  for  duties,  §  2228. 
surrender  of,  §  2132. 
writ  of  error  criminal  case. 

circuit  court  of  appeals,  Rule  35  C.  C.  A.  (2d  circuit).  Appendix. 

BAILIFFS, 

district  courts,  §  38. 

BANKRUPTCY, 

appeal  8th  circuit,  Rule  45  C.  C.  A.  Appendix. 

appeals  to  Supreme  Court,  §  2020. 

circuit  court  of  appeals,  supervisory  jurisdiction,  §  2033. 

summary  of  several  jurisdictional  provisions,  §  375. 

writ  of  error,  8th  circuit,  Rule  45  C.  C.  A.  Appendix. 

BANKS,  NATIONAL, 

see  also  National  Banks. 

diverse  citizenship  of,  §  237. 

exception  as  to  involving  Federal  question,  §  218. 

Federal  question  not  ipso  facto  involved,  §  218. 

BIAS  OF  JUDGE  DISTRICT  COURT, 
designation  of  another  judge,  §  31. 
removal  of  causes  for,  §§  286,  295. 

procedure,  §§  295,  et  seq. 

provisional  remedies  preserved,  §  311. 

remanding,  §§  296,  297,  310. 

return  of  record,  §  310. 

BIGAMY, 

challenges  in  prosecutions  for,  §  2140. 


INDEX  935 

BILL  IX  EQUITY,  ch.  30, 

allegations  of,  §§  890,  892. 
amendment, 

death  of  party,  §  906. 

defect  in  parties,  §  905. 

generally,  §  904. 
amended,  time  for  answer,  §  868. 
amount  in  controversy,  statement  of,  §  265. 
caption  of,  §  893. 
cause  of  action  in,  §  896. 
citizenship  of  parties  in,  §  894. 

constitutional  question  must  appear  on  face  of,  §§  219,  224. 
contents  of,   §   892. 

differences  between  state  and  Federal  statement  of  cause,  §  891. 
discovery,  §  900. 
Equity  Rule  25,  §  892. 

sub.  first,  §  894. 

sub.  second.  §  895. 

sub.  third,  §  896. 

sub.  fourth,  §  897. 

sub.  fifth,  §  898. 

Federal  question  must  appear  on  face  of,  §§  220.  224. 
form  of,  §  899. 

general  statement,  §§  860,  890. 
grounds  of  jurisdiction,  statement  of,  §  895. 
joint  and  several  demands,  §  909. 
jurisdiction,  statement  of  grounds  of,  §  895. 
parties. 

citizenship  and  residence,  §  894. 

defect  in,  §  905. 

generally,  §  897. 

stockholder,  §§  901,  903. 
prayer,  §  898. 
residence  of  parties,  §  894. 
state  practice,  differences  from  Federal,  §  891. 
statement  of  cause  of  action,  §  896. 
statement  ground  jurisdiction,   §  895. 
stockholder,  §§  901,  903. 
supplemental,  §  907. 
treaties,  questions  arising  under,  must  appear  on  face  of,  §§  220,  224. 

BILL  OF  COSTS, 

see  Costs  and  Fees,  §§  531,  532. 

BILL  OF  EXCEPTIONS,  ch.  26, 

authentication  and  signing,  §  765. 

circuit  court  of  appeals,  Rule  10  C.  C.  A.  Appendix. 

contents  of,  §  766. 

signing,  §  766. 


936  -INDEX 

BOARD  OF  GENERAL  APPRAISERS,  §  2251. 

BOND, 

appeal. 

generally,  §  2061. 

none  required  of  United  States,  §  2062. 
attachment,  §  618. 
clerk  Supreme  Court,  §  2452. 
contracts  and  other  papers  of   United  States   in   settlement  of  accounts 

with  government,  copies  as  evidence,  §  440. 
costs,  circuit  court  of  appeals,  Rule  12  C.  C.  A.  Appendix, 
delivery  in  attachment,   §  622. 
diverse  citizenship,  removal  of  cause,  §  291. 
Federal  question,  removal  of  cause,  §  291. 
form  of  supersedeas  or  cost  bond  8th  circuit  Addenda,  Rule  45  C.  C.  A. 

Appendix. 

removal  of  classes  1,  2,  3,  §  291. 
removal,  bond  of  state  court  preserved,  §  311. 
separable  controversy,  removal  of,  §  291. 

supersedeas,  circuit  court  of  appeals,  Rule  13  C.  C.  A.  Appendix, 
temporary  restraining  order,  §  1056. 
writ  of  error,  §  832. 

none  required  of  government,  §  833. 

BOOKS, 

deposition  under  commission,  production  of,  §  517. 

motion  and  notice  to  produce,  §  712. 

production  of,  on  deposition  under  a  commission,  §  517. 

BOUND  COPIES, 

of  acts  as  evidence,  §§  428,  429. 

BRIEFS, 

circuit  court  of  appeals,  Rule  24  C.  C.  A.  Appendix. 
Rule  20  C.  C.  A.   (6th  circuit)  Appendix. 
Rule  21  C.  C.  A.  (6th  circuit)   Appendix. 
Rule  26  C.  C.  A.  Appendix. 
Rule  41  C.  C.  A.  (8th  circuit)  Appendix. 

BURDEN  OF  PROOF, 

court  of  claims,  §  2320. 

seizure  cases  under  customs  duties  laws,  §  458. 

BUSINESS, 

accumulation  of,  how  disposed,  §  25. 
distribution  of,  §  24. 

C. 
CALENDAR, 

circuit  court  of  appeals,  Rule  17  C.  C.  A.  Appendix. 
Rule  18  C.  C.  A.   (3d  circuit),  Appendix. 


INDEX  937 

CALENDAR— continued. 

under  Rule  17  C.  C.  A.  Appendix. 

Rule  22  C.  C.  A.  (6th  circuit)   Appendix, 
court  of  customs  appeals,  §  2261. 
equity,  reinstatement  of  case,  §  879. 

trial  calendar,  §  876. 

CALIFORNIA, 

districts,  terms  and  places  of  holding  court,  §  104. 

CANALS, 

jurisdiction  district  court  to  remove  obstructions,  §  200. 

CAPITAL  CRIMES. 

see  Criminal  Procedure. 

accused  entitled  to  counsel  and  to  compel  witnesses,  §  2142. 

statute  of  limitations,  §  391. 

CAPTION, 

bill  in  equity,  §  893. 

CARRIER, 

see  Common  Carrier. 

CAUSE  OF  ACTION, 
attachment,  §  614. 
bill  in  equity,  allegation  of,  §  896. 
joinder,  legal  and  equitable,  §  603. 

CERTAINTY, 

answer  in  equity,  motion  for,  §§  934,  978. 
motion  for,  equity,  §§  934,  954. 

CERTIFICATION, 

circuit  court  of  appeals  to  Supreme  Court,  §§  2011,  2075. 
District  of  Columbia,  court  of  appeals  of,  §  2080. 
error,  question  of  law,  §  840. 

CERTIORARI, 

see  Writs  of  Certiorari. 

Alaska  cases,  ninth  circuit  to  Supreme  Court,  §  2082. 

circuit  courts  of  appeals,  review  of  decisions  by,  §  2074. 

congressional  officers,  removal  of  cases  against,  §  307. 

error  proceedings,  §  840. 

removal  of  causes  against  congressional  and  revenue  officers,  §  307. 

revenue  officers,  removal  of  causes  against,  §  307. 

Supreme  Court  to  circuit  court  of  appeals.  §  2010. 


938  INDEX 


CHALLENGES, 
see  also  Jury, 
jury,  law  actions,  §  743. 
peremptory  in  criminal  cases,  §  2144. 

CHARGE  TO  JURY, 
law  actions,  §  591. 
trial,  §  749. 

CHIEF  JUSTICE, 

Supreme  Court,  §  2450. 

CHINA, 

appeal  and  error  from  United  States  court  to  circuit  court  of  appeals, 
§  2034. 

CHINESE  EXCLUSION  LAWS, 

district  court  jurisdiction,  §  202. 

fees  United  States  commissioners,  §  546. 

CIRCUIT  COURTS  OF  APPEALS, 

appeals  from  district  courts,  time  for,  §  2053. 

appeal  to  Supreme  Court,  time  for,  §  2055. 

appeals  to,  from  interlocutory  orders,  time  for,  §  2054. 

appeal  to  Supreme  Court,  §  2009. 

appellate  jurisdiction,   see  Appellate   Jurisdiction   Circuit   Court   of   Ap- 
peals, ch.  40. 

certification  by,  to  Supreme  Court,  §  2075. 

certiorari,  review  of  decisions  by,  §  2074. 

death  of  party  pending  appeal  to,  §  2090. 

filing  and  printing  record  on  appeal,  §  2069. 

general  statement,  ^  3. 

printing  record  on  appeal,  §  2069. 

procedure,  appeal  to,  §  2057. 

record  used  in  transcript  to  Supreme  Court.  §  2070. 

time  for  appeal. 

from  courts,  §  2053. 
from  orders,  §  2054. 
to  Supreme  Court,  §  2055. 

writ  of  error,  see  that  heading,  ch.  28. 

writ  of  error  to  Supreme  Court,  §  2009. 

CIRCUIT  JUDGE, 

acting  as  district  judge,  §  28. 

CITATION, 

appeal,  §  2060. 


INDEX  939 

CITATION— continued. 

form  of,  8th  circuit,  Addenda,  Rule  45  C.  C.  A.  Appendix, 
writ  of  error,  §  831. 

CITATION  OF  AUTHORITIES, 

circuit  court  of  appeals,  Rule  37  C.  C.  A.  (2d  and  4th  circuits)  Appendix. 

CITIZENS, 

removal  of  causes,  diverse  citizenship,  §  286. 

land  grants,  §  300. 
Supreme  Court,  suits  between  state  and,  §  2458. 

CITIZENSHIP, 

see  Diverse  Citizenship. 

bill  in  equity,  allegation  of,  §  894. 

change  of,  as  affecting  jurisdiction,  §  246. 

Federal  question  does  not  involve,  §  222. 

venue,  affected  by,  in  cases  involving  Federal  question,  §  222. 

CITIZENS  OF  A  STATE  AND  A  FOREIGN  STATE, 

summary    of    several    jurisdictional    provisions    affecting    suits    between. 
§  357- 

CITIZENS  OF  A  STATE  AND  FOREIGN  CITIZENS  OR  SUBJECTS 

summary    of    several    jurisdictional    provisions    affecting    suits    between, 
§  358. 

CITIZENS  OF  DIFFERENT  STATES, 

summary    of    several    jurisdictional    provisions    affecting    suits    between, 
§  356. 

CIVIL  RIGHTS, 

habeas  corpus  in  removal  of  causes,  §  303. 

CIVIL  RIGHTS  LAWS, 

conspiracy  against,  statute  of  limitations,  §  409. 
exemptions  of  jury,  §  735. 

penalty  for  exclusion,  §  736. 
fees,  attorneys,  clerks,  marshals,  §  544. 
remanding  cases  fraudulently  or  improperly  removed,  §  310. 
removal  of  causes,  §  302. 
summary  of  several  jurisdictional  provisions,  §  370. 

CIVIL  SUITS, 

venue  of,  in  general,  §  161. 

CIVIL  SUITS  BY  UNITED  STATES  OR  ITS  OFFICERS, 
summary  of  several  jurisdictional  provisions,  §  351. 


940  INDEX 

CLAIMANT, 

examination  of,  court  of  claims,  §  2322. 

CLAIMS, 

aliens  in  court  of  claims,  §  2307. 
court  of  claims,  §  2308. 

abandoned  property  against  government,  exceptions,  §  2305. 
aliens,  §  2307. 

pending  elsewhere,   excepted,  §  2306. 
proceeds  abandoned  property,  §  2308. 
railroad  companies,  §  2312. 
referred  by  Congress,  §  2310. 
referred  by  departments,  §  2310. 

pending  elsewhere,  excepted  from  court  of  claims,  §  2306. 
railroad  companies,  court  of  claims,  §  2312. 
referred  by  Congress  to  court  of  claims,  §  2310. 
referred  by  Departments  to  court  of  claims,  §  2309. 
summary  of  several  jurisdictional  provisions,  §  376. 
statutes  of  limitations,  §  403. 

witnesses,  enforcing  attendance  and  testimony  before  Departments,  ;}§  494, 
495. 

•CLERKS, 

assistant,  court  of  customs  appeals,  §  2254. 

circuit  court  of  appeals,  Rule  5  C.  C.  A.  Appendix. 

court  of  customs  appeals,  §  2254. 

district  court,  §§  32,  33. 

fees  of,  §  542. 

civil  rights  laws,  fees  of,  §  544. 

Supreme  Court,  §  2451. 

liability  of  clerk  for  misfeasance  of  deputy,  §  2452. 

CLERKS  NEW  RECORDS  IN  CERTAIN  STATES, 
copies  as  evidence,  §§  455,  456. 

CLOUD  ON  TITLE, 
venue,  §  116. 

CODE, 

construction  of,  §  2220. 

COLORADO, 

districts,  terms  and  places  of  holding  court  in,  §  105. 

COMMERCE  AND  LABOR, 

judicial  notice  of  seal,  §  457. 

COMMERCE  COURT, 

general  statement,  §  3. 


INDEX  941 

COMMERCE  LAWS, 

enforcing  attendance  and  testimony  of  witnesses  under   interstate  com- 
merce act,  §  497. 

immunity  of  witnesses  under,  §  494. 
interstate  commerce  act,  see  that  heading, 
summary  of  several  jurisdictional  provisions,  §  365. 
testimony,  enforcing  under   interstate  commerce  act,   §  497. 
venue  of  suits  affecting  orders  Interstate  Commerce  Commission,  §  180. 
witnesses,  attendance  and  testimony  under  interstate  commerce  act,  §  497. 
witnesses,  immunity  of,  under,  §  474. 

COMMISSION, 

see  Depositions  under  Commission,  §  514. 

removal  by  writ  of  error  to  state  court  of  decision  against  right,  title, 
privilege,  or  immunity  claimed  under  Federal,  §  337. 

COMMISSIONER, 

Chinese  exclusion  laws,  fees  of,  §  546. 

depositions  before,   §   520. 

district  court,  §§  41,  42. 

fees  of,  §  545. 

notice  of  depositions  before,  §  521. 

COMMISSIONER  OF  INDIAN  AFFAIRS, 
certification  of  copies  as  evidence,  §  449. 

COMMITMENT, 

defendant  who  has  given  bail  in  another  district,  §  2229. 
seamen  by  district  court  on  application  of  foreign  consul,  §  207. 

COMMON  CARRIERS, 

removal  of  causes,  employers'  liability  cases  are  not  removable,  §  299. 

COMMON-LAW  ACTIONS, 
see  Law  Actions. 

COMPENSATION,  ' 

masters  in  chancery,  §  1030. 

COMPETENCE, 

anti-trust  laws,  immunity  of  witnesses  under,  §  474. 

commerce  laws,  immunity  of  witnesses  under.  §  474. 

Congress,  immunity  of  witnesses  testifying  before,  §  476. 

criminal  cases,  immunity  of  witnesses  in,  §  475. 
defending  as  a  witness  in,  §  478. 

customs,   revenue   laws,   witnesses   not  disqualified   by   claiming   compen- 
sation under,  §  472. 

defendant  as  witness  in  criminal   proceedings,   §   478. 

determined  in  general  by  state  laws,  §  470. 


942  INDEX 

COMPETENCE— continued. 

fines,  officers  and  informers  not  disqualified  as  witnesses  in   suits  for, 

§  473. 
forfeitures,  officers  and   informers  not  disqualified  as  witnesses  in  suits 

for,  §  473. 

immunity  of  witnesses,  §§  474,  5,  6,  7. 
informers  not  disqualified   as   witnesses   in  suits   for   fines,   penalties,   or 

forfeitures,  §  473. 

judicial  proceedings,  immunity  of  witnesses  testifying  in,  §  477. 
officers   and   informers   not   disqualified   as   witnesses    in   suits   for   fines, 

penalties,  or  forfeitures,  §  473. 
penalties,  officers  and  informers  not  disqualified  as  witnesses  in  suits  for, 

§  473. 

perjury  does  not  disqualify  witness,  §  471. 
revenue  laws,  witness  not  disqualified  by  claiming  compensation  under, 

§  472. 

state  laws  determine,   §   470. 
testimony,  see  that  heading, 
witnesses,  see  above  and  that  heading,  ch.  15. 

COMPLAINT, 

see   Initial   Pleading. 

bill  in  equity,  ch.  30. 

differences,  Federal  and  state,  §  891. 

law  action,  form  of,  §  604. 

COMPTROLLER  OF  THE  CURRENCY, 
copies  of  records  as  evidence,  §  438. 
injunctions  against,  venue,  §  172. 

COMPULSORY  ATTENDANCE, 

see  Attendance. 

COMPULSORY  PROCESS, 
see  Process. 

COMPULSORY  TESTIMONY, 
see  Testimony. 

CONCURRENT  JURISDICTION, 

of  district  and  state  courts,  §  193. 

CONDEMNATION, 

insurrectionary  property,  venue,  §  177. 

CONFERENCE  DAY, 

Saturday,  Rule  35  C.  C.  A.  (4th  circuit)   Appendix. 


INDEX  943 

CONFINEMENT, 

juvenile  offenders  under  sixteen  in  house  of  refuge,  §  2157. 
s        juvenile  offenders  separate  from  prisoners  over  twenty,  §  2158. 

state  jail  or  penitentiary  when  use  of,  so  allowed  by  state  law,  §  2154. 

same,  where  nonavailable,  attorney  general  may  designate,  §  2155. 

same,  transportation  of  prisoners  to  place  of  imprisonment,  §  2156. 

CONFORMITY  TO  STATE  LAWS, 
see  Law  Actions,  ch.  18. 
allowance  of  interest  on  judgments,  §  783. 
appraisal  of  personal  property  on  execution  sale,  §  804. 
arrest,  discharge  from,  in  civil  actions,  §   797. 
attachments,  law  actions,  §§  610,  611. 
defensive  pleading -at  law  to  state  practice,  ch.  22. 
discharge  from  arrest  -in  civil  cases,  §  797. 
executions  at  law,  §  791. 
garnishment  law  actions,  §§  610,  611. 
imprisonment  for  debt,  modifications,  §  796. 

discharge  from,  in  civil  cases,  §  797. 
judgments  law  actions,  §  782. 
lien  of  judgment,  §  787. 
levy  of  judgments,  §§  782,  783.  - 
rate  of  interest  on  judgments,  §  783. 
record  of  judgment,  §  785. 

sale  of  personal  property  on  execution,  appraisal,  §  804. 
stay  of  execution  for  one  term,  §  794. 

CONGRESS, 

claims  referred  by,  §  2310. 

evidence  from,  in  court  of  claims,  §  2323. 

immunity  of  witnesses  testifying  before,  §  476. 

CONGRESSIONAL  JOURNAL, 

extracts  from,  as  evidence,  §  427. 

CONGRESSIONAL  OFFICERS, 

certiorari  in  removal  cases,  §  307. 

habeas  corpus  in  removal  cases  against,  §  307. 

removal  of  causes  against,  class  eight,  §  304. 

CONNECTICUT, 

districts,  terms  and  places  of  holding  court  in,  §  106. 


CONSOLIDATION, 
cases,  §  710. 
costs  and  fees,  §  537. 
indictments,  §  2123. 
law  actions,  §  587. 


944  INDEX 

CONSTITUTION, 

appellate   jurisdiction    Supreme   Court   in   cases    involving   construction, 

§  2005. 

Federal  question  arising  under,  §§  2219,  2221. 
habeas  corpus,  provision  of,  §  2200. 
powers  of  courts,  §§  1,  2. 

removal  by  writ  of  error  to  state  court  of  decision  against  right,  title, 
privilege,  or  immunity  claimed  under  Federal,  §  337. 

CONSTITUTIONALITY, 

appellate   jurisdiction   of   Supreme   Court  where    Federal   law   or   treaty 
drawn  in  question  on  that  ground,  §  2006. 

CONSTITUTIONAL  JURY, 

see  Jury.  «;V;te 

trial  law  actions,  §  733. 

CONSTITUTIONAL  POWERS, 
Federal  courts,  §§  1,  2. 

CONSTRUCTION, 
Code,  §  2220. 
Constitution,  appeal  to  Supreme  Court,  §§  2205,  6. 

CONSUL, 

as  a  party  in  Supreme  Court.  §  2458. 

awards  of,  appellate  jurisdiction  of  the  district  court,  §  205. 

foreign,  in  United  States,  jurisdiction  over  seamen,  §  206. 

CONSULAR  RECORDS, 

copies  as  evidence,  §  454. 

CONTEMPT, 

court's  power  to  punish  for,  §  1069. 

enforcement  of  decrees,  see  that  heading. 

garnishee  in,  for  failure  to  appear  in  government  suits  against  corpora- 
tions, §  642. 

witnesses,  power  to  punish  for,  §  487.  •£•»  (< 

.M'U;   i  .Jil^i-,.  s«s!'.  ,3kiiif.v   -v,s,c;}Vi   ;/,  J*voifj'..\'- 
CONTINUANCES, 

see  also  Adjournments. 

C.  C.  A.  Rule  19  (3d  circuit)  Appendix. 

death  of  a  party,  §  691. 

debentures,  suits  on,  §  695. 

equity,  suits,  §  878. 

judge's  office  vacant,  §  64. 

law  actions,  §  586. 

postal  laws,  suits  under,  §  694. 

suit  against  delinquent  for  public  moneys,  §  693. 

tariff  laws,  suits  under,  §  696. 


INDEX  945 

CONTRACTS, 

and   other  papers  of  the  United   States   in   settlement  of   accounts  with 
government,  copies  as  evidence,  §  440. 

COPIES, 

as  evidence,  see  subheading  Copies  under  heading  Evidence. 

COPYRIGHT, 
costs,  §  567. 

infringement  of,  statute  of  limitations,  §  411. 
penalty  under,  statute  of  limitations,  §  401. 
summary  of  several  jurisdictional  provisions,  §  364. 

CORPORATIONS, 

banks,  national,  do  not  ipso  facto  involve  Federal  question,  §  218. 
same,  diverse  citizenship,  §  237. 
diverse  citizenship  of,  §  234. 
Federal,  involve  question,  §'  217. 

same,  except  national  banks,  §  218. 
national  banks,  do  not  ipso  facto  involve  Federal  question,  §  218. 

CORRUPTION  OF  BLOOD, 

none  in  criminal  cases,  §  2165. 

COSTS  AND  FEES,  ch.  17, 

amount  in  controversy  as  affecting.  §  536. 
amount  of  recovery  as  affecting,  §  536. 
appraisers,  fees  on  execution  sales,  §  559. 
attorneys. 

civil  rights  cases,  §  544. 

fees  of,  §  539. 

liability  for  costs  vexatiously  increased,  §  540. 
bill  of  costs,  §§  531,  532. 

bond  circuit  court  of  appeals,  Rule  13  C.  C.  A.  Rule  27  C.  C.  A.    (6th 
circuit),  Appendix. 

Rule  29  C.  C.  A.  (3d,  4th,  5th,  7th,  8th  and  Oth  circuits)   Appendix. 

Rule  31  C.  C.  A.   (1st  and  2d  circuits)   Appendix, 
clerk's  fees,  §  542. 

civil  rights  case,  §  544. 

Chinese  exclusion  laws,  commissioner's  fees,  §  546. 
circuit  court  of  appeals,  Rule  43  C.  C.  A.  (8th  circuit)   see  Bond  C.  C.  A. 

above.  Appendix. 

civil  rights  laws,  attorney's,  clerk's,  and  marshal's  fees,  §  544. 
commissioner's  fees,  §  545. 

Chinese  exclusion  laws,  §  546. 
consolidated  cases,  §  537. 
copyright  cases,  §  567. 
court  of  claims,  §  2327. 

Montg. — 60. 


946  INDEX 

COSTS  AND  FEES— continued, 
criminal  cases. 

defendant,  prosecution  on  ponal  statute,  §  565. 

indigent  parties,  §§  534,  535. 

informer,  prosecution  on  penal  statute,  §  566. 

preliminary  examination,  United  States  only  liable  for  witness  fees, 

§  553. 
defendant, 

indigent  in  criminal  cases,  witness  fees,  §  535. 

nonsuit  of  prosecution  under  penal  statute,  §§  565,  566. 
definition,  folio,  printer's  fees,  §  558. 
depositions. 

District  of  Columbia,  witness  fees,  §  550. 
district  attorney's  fees,  §  541. 
execution  sale,  appraiser's  fees,  §  547. 
extradition,  costs  and  fees,  §  547. 
fines,  costs  of  prosecution,  §  564. 
folio  defined,  §  558. 

form  of  bond,  8th  circuit,  Addenda,  Rule  45  C.  C.  A.  Appendir. 
general  statement  costs  and  fees,  §  530. 
grand  juror,  fees  of,  §§  555,  556. 
indigent  party. 

costs  and  fees,  §  534. 

witness  fees  in  criminal  cases,  §  535. 
infringement  of  patent,  §   568. 
juror  fees. 

grand  juror,  §  555. 

petit  juror,   §  556. 

payment,  how  made,  §  556. 
marshal,  §  543. 

civil   rights  cases,  §  544. 
master  in  chancery,  §  1034. 
mode  of  recovery,  §  538. 
nonsuit,  costs  against  informer  on  nonsuit,  §  566. 

for  defendant  on  nonsuit,  §  565. 
officer  of  court  not  entitled  to  witness  fees,  §  549. 
patent  infringement  cases,  §  568. 
penal  statute, 

costs  against  informer  on  nonsuit,  §  566. 

for  defendant  on  nonsuit,  §  565. 
printer's  fees,  §  557. 

folio  defined,  §  558. 

prize  cases,  witness  fees,  how  paid,  §  554. 
proctors,  §  539. 
revenue  cases. 

against  nonsuited  plaintiff  in  action  against  officer,  double  costs  taxed, 
§  563. 

none  against  United  States  in  cases  upon  information,  §  560. 

seizure  cases,  §  561. 


INDEX  94-7 

COSTS  AND  FEES— continued. 

salary,  district  attorney,  §  541. 
x      seamen,  fees  of,  criminal  cases,  §  552. 
solicitors,  §  539. 
taxable  costs  and  fees,  §  531. 
verification  bill  of  costs,  §  532. 
witness  fees,  see  Witness,  subhead  Fees,  §  548. 

court  officers  not  entitled  to,  §  549. 

criminal  examination,  United  States  only  liable  for  four  witnesses, 
§  553. 

depositions  in  District  of  Columbia,  §  550. 

indigent  defendant  in  criminal  cases,  §  535. 

letters  rogatory  from  a  foreign  country,  §  551. 

prize  cases,  §  554. 

seamen  sent  home  to  give  testimony  in  criminal  cases,  §  552. 
writ  of  error,  §  845. 


COUNSEL, 

to  aid  district  attorney,  §§  32,  39. 

COUNSELORS, 
see  Attorneys. 

COUNTER  ALLEGATIONS, 

habeas  corpus  return,  §  2210. 

COUNTERCLAIM, 

court  of  claims,  enforcement  of  judgment,  §  2331. 

COUNTERCLAIM  IN  EQUITY,  §§  980,  1,  2,  3. 
amendment,  §  976. 
answer  in  equity,  §  980. 
attacks  upon,  §  978. 
certainty  in,  motion  for,  §  978. 
contents,  §  980. 

cross  bill,  matter  for,  set  up  in  counterclaim,  §  982. 
definiteness,  motion  for,  §  978. 
discovery,  §  975. 
effect  of,  §§  980,  1. 
effect  of  failure  to  plead,  §  983. 
form,  §§  974,  980. 

impertinent  matter  in,  motion  to  strike,  §  978. 
independent  suit  in  equity  in,  §  981. 
irrelevant  matter  in,  motion  to  strike  out,  §  978. 
issue,  when  reply  filed,  §§  875,  979. 
objections  to,  §  978. 

motion  to  make  more  definite  and  certain,  §  978. 

motion  to  strike  redundant,  impertinent,  or  scandalous  matter  in.  §  078. 
pleading,  §  980. 


048  INDEX 

COUNTERCLAIM  IN  EQUITY— continued. 

redundant  matter  in,  motion  to  strike  out,  §  978. 

reply  to,  §  874,  979. 

scandal  in,  motion  to  strike  out,  §  978. 

service,  time  for,  §  872. 

set-off,  in  the  answer,  §§  980,  981. 

supplemental  pleading,  §  979. 

time  for,  §  972. 

COURT  COMMISSIONERS,  §§  41,  42. 

COURT  OF  CLAIMS,  §  3,  eh.  47. 

abandoned  property,  claims  for  proceeds  of,  §  2308. 

aliens,  claims  of,  §  2307. 

appeals,  §  2332. 

appeals  to  Supreme  Court,  §  2012. 

burden  of  proof,  §  2320. 

claimant,  examination  of,  §  2322. 

claims. 

abandoned  property,  §  2308. 

against  government,  exceptions,  §  2305. 

aliens,  §  2307. 

pending  elsewhere,  excepted,  §  2306. 

proceeds  abandoned  property,  §  2308. 

railroad  companies,  §  2312. 

referred  by  Congress,  §  2310. 

referred  by  Departments,  §  2310. 
Congress,  claims  referred  by,  §  2310. 

evidence  from,  §  2323. 
costs,  §  2327. 

counterclaim,  enforcement  of  judgment,  §  2331. 
defense  by  Attorney  General,  §  2317. 
Departments,  claims  referred  by,  §  2309. 
Department,  evidence  from,  §  2323. 
disqualification  to  practise  in,  §  2302. 
evidence. 

burden  of  proof,  2320. 

examination  of  claimant,  §  2322. 

from  Departments  and  Congress,  §  2323. 

testimony  before  commissioners,  §  2321. 

witnesses,  §  2324. 
examination  of  claimant,  §  2322. 
general  statement,  §  3. 

indebtedness  due  government,  settlement  of,  §  2311. 
Indian  treaties,  no  jurisdiction,  §  2306. 
interest,   §   2326. 
judges,  §  2301. 
judgment. 

counterclaim,  enforcement,  §  2331. 


INDEX  949 

COURT  OF  CLAIMS— continued. 

judgment,  effect  of,  §  2328. 

reports  to  Congress  and  executive  officers,  §  2329. 

set-off,  enforcement,  §  2331. 
jurisdiction. 

claims  against  government,  exceptions.  §  2305. 

claims,  aliens,  §  2307. 

claims  pending  elsewhere,  §  2306. 

claims  railroad  companies,  §  2312. 

claims  referred  by  Congress  and  Departments,   §§  2309,  2310. 

Indian   treaties    (excepted)    §   2306. 

patent  cases,  unlicensed  use  by  government,  §  2313. 

restrictions  of,  §  2306. 

settlement  indebtedness  due  government,  §  2311. 

treaties   (excepted)    §  2306. 
limitations,  statute  of,  §  2314. 
maintenance  of,  §  2303. 
new  trial,  §  2325. 
officers,  §  2301. 
organization,  §§  2300,  2301. 
patent  infringement  by  government,  §  2313. 
petition,  §  2316. 

insufficient,  §  2318. 
practice,  disqualification  for,  §  2302. 

rules  of,  §  2315. 
quorum.  §  2304. 

railroad  companies,  claims  for  transportation  furnished,  §  2312. 
rules  of  practice,  §  2315. 
sessions,  §  2304. 

set-off,  enforcement  of  judgment,  §  2331. 
statute  of  limitations,  §  2314. 
testimony  before  commissioners,  §  2321. 
traverse,  §  2319. 

treaties,  no  jurisdiction  of  claims  under,  §  2313. 
witnesses,  §  2324. 

COURT  OF  CUSTOMS  APPEALS,  ch.  46. 

appeal,  time  for,  §  2260. 

assistant  clerks,  §  2254. 

board  of  general  appraisers.  §  2251. 

calendar,  §  2261. 

clerks,  §  2254. 

clerks,  assistant,  §  2254. 

court  rooms,  §  2257. 

general  appraisers,  board  of,  §  2251. 

general  statement,  §  2250. 

judges,   §  2253. 

jurisdiction,  §  2259. 


950  INDEX 

COURT  OF  CUSTOMS  APPEALS— continued, 
marshal,  §  2256. 
organization,  §  2252. 
quorum,  §  2253. 
rules,  §  2252. 
sessions,  §  2258. 
time  for  appeal,  §  2260. 

COURTS, 

constitutional  powers  of,  §§  1,  2. 

circuit  court  of  appeals,  see  that  heading,  ch.  45. 

commerce  court,  §  3. 

commissioners,  §§  41,  42. 

court  of  claims,  see  that  heading,  §  3,  ch.  47. 

court  of  customs  appeals,  see  that  heading,  §  3,  ch.  46. 

depositions,  see  that  heading,  ch.  16. 

district  courts,  see  that  heading,  §  3. 

double  system  of  Federal,  §  5. 

enumeration  of,  §  3. 

equity,  see  that  heading,  ch.  29. 

Federal  courts,  see  that  heading. 

generally  as  to,  ch.  1. 

injunctions,  see  that  heading,  ch.  37. 

judicial  districts,  ch.  4. 

judicial  power  of,  §§  1,  2. 

jurisdiction  in  general,  ch.  1. 

to  issue  habeas  corpus,  §  2201. 
law  actions,  see  that  heading,  ch.  18. 
place  of  nonjudicial  system,  §  1. 
places  for  holding,  ch.  4. 

power  to  punish  for  contempt,  see  Contempt, 
rules,  see  Rules. 

states,  district  courts  in  the  several,  ch.  4. 
Supreme  Court,  §  3,  ch.  49. 
terms  of,  in  judicial  districts,  ch.  4. 

CREDITS, 

government  suits  against  individuals,   §  2234. 
postal  laws,  government  suits  under,  §  2235. 

CRIER, 

circuit  court  of  appeals,  Rule  6  C.  C.  A.  Appendix, 
district  court,  §  38. 

CRIMES, 

see  also  Criminal  Procedure. 

district  court  jurisdiction  over  crimes  on  Indian  reservation.  §  204. 

Indian  reservation,  South  Dakota,  §  204. 


INDEX  951 

CRIMES— continued. 

statutes  of  limitations,  §§  391,  397. 
revenue  laws,  §  395. 
slave  trade  laws,  §  394.     , 

summary   several   jurisdictional    provisions,    §   359. 
venue,  §  174. 

CRIMINAL  PROCEDURE, 

adjournments,  monthly,  to  expedite  criminal  cases,  §  66. 

appearance  bond  on  writ  of  error  circuit  court  of  appeals,  Addenda,  Rule 

45  C.  C.  A.  Appendix, 
accused. 

arrest,  see  that  heading,  §§  2126,  2127. 

bail,  see  that  heading,  §§  2129,  2134. 

compulsory  process  for  witnesses,  §§  479,  482,  2141,  2142. 

confinement,  see  that  heading,  §§  2126,  2154,  2158. 

costs  and  fees,  indigent  defendant,  §  535. 

counsel,  entitled  to,  §  2142. 

indictment,  see  that  heading,  §§  2119,  2123. 

lists  of  jurors  and  witnesses,  entitled  to,  in  what  cases,  §  2141. 

prosecution,  §  2139. 

recognizance,  §  2134. 

trial,  §§  2126,  2143,  2147. 

verdict,   §§  2148,  2150. 

witnesses,  entitled   to  list  of  and   compulsory   process,   §§   479,   482, 

2141,  2142. 

arrest,  see  that  heading,  §§  2126,  2127. 
bail,  see  that  heading,  §§  2129,  2134. 
bigamy,  challenges  in  prosecutions  for,  §  2146. 
challenges,  §§  2144,  2146. 

compulsory  process  for  witnesses,  §§  479,  482,  2141,  2142. 
confinement  of  prisoners,  §§  2126,  2154,  2158. 
corruption  of  blood,  none,  §  2165. 
costs  and  fees,  see  Costs  and  Fees, 
death  penalty,  §§  2162,  2164. 
defendant  as  a  witness,  §  478. 
defendant  indigent,  witnesses  for,  §  485. 
discharge  indigent  convicts,  §  2153. 
execution,  death  penalty,  §  2162. 

postponement,  §  2151. 

Federal  courts,  penal  laws  enforced  in,  §  2102. 
fine,  mitigation  or  remission,  §§  2159,  2161. 
forfeiture  of  estate,  none,  §  2165. 
grand  jury,  §§  2115,  2111). 
imprisonment,  see  Confinement,  §  2126. 
indictment,  see  that  heading,  §§  2119,  2123. 

consolidation  of  charges,  §  2123. 

defect  of  form,  §  2124. 

grand  jury,  §  2119. 


952  INDEX 

CRIMINAL  PROCP:DURE— continued. 

navy  court  martial,  §  2122. 

perjury,  §  2120. 

subornation  of  perjury,  §  2121. 
judgment,  fines  how  collected,  §  2152. 

on  demurrer  to  indictment,  §  2125. 
jurors,  list  of,  to  be  given  person  indicted  of  treason  or  capital  offense, 

§  2141. 
jury,  criminal  cases,  see  heading,  Jury,  §§  2109,  2119. 

*  grand,  §§  2115,  2119. 
jurisdiction,  §  2100. 
navy  court  martial,  indictment,  §  2122. 
offenses,  how  prosecuted,  §  2108. 
officers  authorized  to  hold  to  security  of  the  peace  and  good  behavior, 

§  2128. 

pardon  by  president,  §  2167. 
parole  of  prisoners,  §  2168. 
peremptory  challenges,  §§  2144,  2145. 
perjury,  indictment,  §  2120. 
pillory  abolished,  §  2166. 

places  in  which  criminal  law  of  the  United  States  applicable,  §  2101. 
plea  not  guilty,  standing  mute,  §  2140. 
polygamy,  challenges  in  prosecution  for,  §  2146. 
prisoner, 

arrest,  see  that  heading,  §§  2126,  2127. 

bail,  see  that  heading,  §§  2129,  2134. 

confinement,  see  that  heading,  §§  2126,  2154,  2158. 

counsel,  entitled  to,  §  2142. 

indictment,  see  that  heading,  §§  2119,  2123. 

list  of  jurors  and  witnesses,  entitled  to,  in  what  cases,  §  2141. 

recognizance,  §§  480,  482,  2134. 

removal  from  one  district  to  another,  §  2136. 

trial,  §§  2126,  2143,  2147. 
prosecution  by  district  attorney,  §  2139. 
recognizance  of  witnesses,  §§  480,  482. 
recognizance,  forfeitures  or  remittance  of,  §  2134. 
state. 

criminal  jurisdiction  not  affected,  §  2105. 

jurisdiction  of  offenses,  §  2104. 

penal  laws,  where  adopted  in  the  Federal  courts,  §  2103. 
subornation  of  perjury,  indictment,  §  2121. 
statutes  of  limitation,  §  2107. 
trial. 

criminal  cases,   §   2147. 

jury,  right  of  accused  to,  §  2143. 

removal  for,  of  offenders  against  the  United  States,  §  2126. 
venue,  §  2106. 


INDEX  953 

CRIMINAL  PROCEDURE— continued, 
verdict. 

for  less  offense  than  charge,  §  2148. 

in  case  of  several  defendants,  §  2149. 

qualified  in  cases  of  murder  of  the  first  degree  or  rape,  §  2150. 
whipping  abolished,  §  2166. 
witnesses. 

compulsory  process  for,  §§  479,  482,  2141,  2142. 

defendant  as  a  witness,  §  478. 

immunity  of,  §§  474,  475. 

indigent  defendant,  for,  §  485. 

list  of,  to  be  given  person  indicted  for  treason  or  capital  crime.  §  2141. 

recognizance  of,  §§  480,  482,  2134. 
writ. 

copy  of  jailer's  authority,  §  2135. 

indictments,  several  against  same  person,  one  writ,  §  2l:>7. 

not  required  to  bring  a  person  in  custody  into  court,  8  2138. 

removal  of  prisoner  from  one  district  to  another,  §  2136. 
writ  of  error,  circuit  court  of  appeals. 

Rule  34  C.  C.  A.  7th  circuit,  Appendix. 

Rule  35  C.  C.  A.  Appendix. 

Rule  37  C.  C.  A.  5th  circuit,  Appendix. 

CROSS  BILL, 

answer  in  equity,  contains  matter  of,  §  982. 
counterclaim  takes  the  place  of,  §  982. 

CUSTODY, 

prisoners  on  habeas  corpus,  circuit  court  of  appeals, 
Rule  32  C.  C.  A.  Appendix. 

Rule  31  C.  C.  A.   (3d  and  7th  circuits)   Appendix. 
Rule  32  C.  C.  A.   (6th  circuit)    Appendix. 

CUSTOMS  LAWS, 

bailing  property  seized,  §  2227. 

burden  of  proof  seizure  cases,  §  458. 

court  of  customs  appeals,  see  that  heading,  ch.  46. 

district  court's  jurisdiction  over,  §  199. 

motion  and  notice  to  produce  books  and  papers,  §  712. 

procedure  in  seizure  cases,  §  2226. 

statute  limitations  violation  of  laws,  §§  399,  400. 

warrants  for  searches  and  seizures,  §  2225. 

witnesses,  not  disqualified  by  claiming  compensation  under.  §  472. 

D. 
DAMAGES, 

circuit  court  of  appeals,  Rule  26  C.  C.  A.   (6th  circuit),  Appendix, 
writ  of  error,  §  845. 


954  INDEX 

DEATH  OF  A  PARTY, 

after  judgment  before  appeal,  §  2087. 

circuit  court  of  appeals,  Rule  19  C.  C.  A.  Appendix. 

Rule  21,  3d  circuit  under  Rule  19  C.  C.  A.  Appendix. 

Rule  16,  6th  circuit  under  Rule  19  C.  C.  A.  Appendix, 
continuance,  §   691. 

pending  appeal  to  Supreme  Court,  §  2088. 
pending  appeal  to  circuit  court  of  appeals,  §  2090. 
procedure  in  circuit  court  of  appeals  where  decedent's  representative  not 

within  jurisdiction,  §  2091. 
procedure  in   Supreme  Court  when  deceased's   representative   not   within 

jurisdiction,  §  2089. 
survival  of  law  action,  §  692. 

DEATH  PENALTY, 

abolished  except  in  certain  cases,  §  2163. 

execution  of,  §  2162. 

life  imprisonment,  when  may  be  substituted,  §  2164. 

DE  BENE  ESSE,  see  Depositions,  De  Bene  Esse. 

DEBENTURE, 

continuances  in  suits  on,  §  695. 

DEBT,  IMPRISONMENT  FOR, 

execution,  state  laws  adopted,  §  796. 
suits  by  government,  §§  798,  799. 

DECISIONS,  see  Opinions. 

district  court,  reports  of,  §  70. 
Supreme  Court,  §  2454. 

DECLARATION, 

amount  in  controversy,  statement  of,  §  265. 
initial  pleading,  see  that  heading. 

DECREE, 

equity  suits,  ch.  38. 

default,  see  that  heading,  §  931. 

enforcement  of,  §  1082. 

form,  rule  as  to,  §  1080. 

injunctions,  see  that  heading,  ch.  37. 

lien  of,  §  1083. 

mistakes,  correction  of,  §  1081. 

prize  cases,  appeals  to  Supreme  Court,  §  2004. 

pro  confesso,  see  Decree  Pro  Confesso,  ch.  32. 

removable  by  writ  of  error  to  state  court,  §  333. 


INDEX  955 

DECREE   PRO   CONFESSO,   ch.   32, 
default,  when  taken,  §  931. 
defensive  pleading  in  equity,  §  930. 
final  decree,  when  made,  §  937. 
motion  to  dismiss,  as  affecting  default,  §  933. 
motion  to  make  more  definite  and  certain,  §  934. 
motion  to  strike  redundant,  impertinent,  or  scandalous  matter,  §  935. 
motion  to  transfer  to  law  side,  936. 
pleading  to  save  from,  §  932. 
time  for,  §§  930,  937. 
when  made  final,  §  937. 

DEDIMUS  POTESTATEM, 

see  Depositions,  §§  514  et  seq. 

DEFAULT, 

decree  pro  confesso,  when  taken,  §  931. 

equity  cases,  §  931. 

law  actions,  §  672. 

pleading  required  to  save  from,  in  equity,  §  932. 

when  taken  in  equity,  §  931. 

DEFECT  OF  PARTIES, 

defensive  pleading,  equity,  §  957. 
motion  to  dismiss  for,  equity,  §  956. 
parties  in  equity,  §  957. 

DEFENDANT, 

see  also  Criminal  Procedure,  subhead  Accused. 

absent,  venue  when,  §  166. 

compulsory  process  for  witnesses  for  indigent,  §  485. 

indigent,   compulsory   process   for  witnesses,  §  485. 

indigent,  costs  and  witness'  fees  in  criminal  cases,  §  535. 

where  in  different  district,  same  state,  venue,  §  164. 

where  some  not  found  venue,  §  173. 

witness  in  criminal  proceedings,  §  478. 

witness,  subpoena  for,  on  behalf  of  indigent  in  criminal  cases,  §  485. 

DEFENSE, 

see  Defensive  Pleading. 

answer  in  equity,  see  that  heading,  ch.  34. 

counterclaim  in  equity,  see  that  heading,  §§  980,  1,  2,  3. 

court  of  claims,  by  Attorney  General,  §  2317. 

cross  bill,  counterclaim  takes  the  place  of,  §  982. 

set-off,   see  Counterclaim,   §   980. 

DEFENSIVE  PLEADING, 

see  headings  below,  Defensive  Pleading — Equity,  and  Defensive  Pleading 
— Law. 

DEFENSIVE    PLEADING,   EQUITY,   ch.   33, 

see   headings,   Answer    (ch.   34);    Decree   pro  Confesso    (ch.   32);   Equity 
Suit;    Motions;    Pleading. 


956  INDEX 

DEDENSIVE  PLEADING,  EQUITY— continued, 
answer,  defense  in  point  of  law,  §  956,  ch.  34. 
better  statement,  motion  to  obtain,  §  954. 

cause  of  action,  failure  to  state,  motion  to  dismiss  or  in  answer,  §  956. 
defect  of  parties,  §  957. 

defense  in  point  of  law,  motion  to  dismiss,  §  956. 
demurrers  in  equity  abolished,  §  956. 
definite  motion  to  make  more,  §§  934,  954,  978. 
impertinent  matter,  to  remove,  §  955. 
issue  of  law,  §  956. 
kinds  of,  in  equity,  §  950. 
misjoinder,  motion  to  dismiss  for,   §   956. 
motion  day  in  equity,  §  951. 
motions  to  dismiss,  §§  933,  956. 
motions  grantable  of  course,  §  953. 

motion  to  make  more  definite  and  certain,  §§  934,  954. 
motion  to   strike   out  defense,   §   873. 
motion  to  transfer  to  law  side,  §  936. 
notices  under  equity  rules,  §  952. 
notices  of  orders,  §  958. 
parties,   defect  of,   §§   956,  957. 
particulars,   to  obtain,   §§   934,   954. 
pleas  abolished,  §  956. 

redundant  matter,  to  remove,  §§  935,  955. 
scandal,  to  remove,  §  955. 
time  for  defensive  pleading,   §  930. 

DEFENSIVE  PLEADING,  LAW,  §  584,  ch.  22. 
amendment,  §  676. 
conformity  to  state  law,  ch.  22. 
default,  §  672. 

differences  between  law  and  equity.  §  6. 
equitable  defenses,  §  675. 
form  of,  §  673. 

initial  must  show  Federal  grounds,  §§  224,  225. 
manner  of,  §  674. 

motion  to  transfer  from  equity  to  law,  §  939. 
order  of,  §  671. 
scope  of,  §  674. 
sufficiency  of,  §  674. 
time  for,  §  671. 

DEFINITENESS, 

motion  for,  equity,  §  954. 

DEFINITIONS,  §  2221, 

amount  in  controversy,  §  264. 

appellant,  Rule  1  C.  C.  A.   (6th  circuit)    Appendix. 

appellee,  Rule  1  C.  C.  A.   (6th  circuit)   Appendix. 


INDEX  957 

DEFINITIONS— continued. 

counsel,  Rule  1  C.  C.  A.    (6th  circuit)    Appendix, 
diverse  citizenship,  §  231. 
Federal  question,  §  220. 
folio,  printer's  fees,  §  558. 

DELAWARE, 

districts  in,  terms  and  places  of  holding  court,  §  107. 

DELIVERY, 

depositions  de  bene  esse,  into  court,  §  513. 

DELIVERY  BOND, 

attachment,  §  622. 

DEMAND, 

to  admit  execution   and  genuineness  of  documents,   §   1011. 

DEPARTMENT  OF  INTERIOR, 

copies    as    evidence,    return    of    contract    to    Returns    Office    of    Depart- 
ment, §  444. 

DEPARTMENTS, 

claims  referred  by,  §  2309. 

evidence  from,  in  court  of  claims.  §  2323. 

witnesses  in  claim  cases,  subpoena,  §  494. 

DEPOSITIONS,  ch.  16, 

attendance  of  witnesses. 

de  bene  esse,  §  508. 

under  commission,   §  516. 

exemption  from,  under  commission,  §  515. 

to  be  used  in  foreign  country,  §  524. 

books,  production  of,  on  deposition  under  a  commission,  §  517. 
commission,  under  a,  §§  514  et  seq. 
commissioner,  before  a,  §  520. 
commissioner,  before  a  notice  of,  §  521. 
conditions  for  taking  and  using  de  bene  esse.  §  505. 

under  commission,   §  514. 
court,  delivery  into,  de  bene  esse,  §  513. 
de  bene  esse,  §§  505  et  seq. 

dedimus  potestatem,  depositions  under  commission.  §§  514  et  seq. 
delivery,  de  bene  esse,  into  court,  §  513. 

documents,  production  of,  taking  deposition  under  commission,  §  517. 
equity  suits. 

after  issue,   §  503. 

after  cases  on  trial  calendar,  §  877. 

before  issue,  §  871. 

form  of  deposition,  rule,  §  510. 


958  INDEX 

DEPOSITIONS— continued, 
equity  suits. 

generally,  §§  863,  1001. 

grounds  for  taking,  §  504. 

objections  to  depositions,  rule,  §  511. 

publication  of  depositions,  §  522. 

signing  depositions,  rule,  §  510. 

time  for  taking  depositions,   §   502,  3. 
examiner,  before,  §  520. 
filing  as  publication  in  equity,  §  522. 
foreign  country,  letters  rogatory,  §  523. 

to  be  used  in,  §  524. 
form  of,  in  equity,  rule  as  to,  §  510. 

general  statement,  §  500. 

de  bene  essc,  §  505. 

under  commission,  §  514. 
grounds,  depositions  in  equity,  §  504. 
issue,  depositions  in  equity  after,  §  503. 
laws  actions. 

generally,  §  590. 

time  for  taking,  §  501. 
letters  rogatory,  §  523. 
master  in  chancery,  before,  §  520. 
mode  of  taking  de  bene  esse,  §  509. 
notice,  before  commissioner,  examiner  or  master,  §  521. 

de  bene  esse,  §  507. 
objections  to,  in  equity  suit,  §  511. 
officers,  de  bene  esse  before,  §  506. 

papers,  production  of,  on  deposition  under  commission,  §  517. 
perpetuation  of  testimony,  depositions  taken  under  state  laws,  §  518. 
production  of  books,  etc.,  on  depositions  under  a  commission,   §   517. 
provisional,  see  De  bene  esse,  §§  505  et  seq. 
publication  in   equity  on   filing,   §   522. 
rule,  form  in  equity,  §  510. 

objections  in  equity,  §  511. 

signing  in  equity,   §   512. 
signing  in  equity,  §  512. 

state  laws,  taken  under,  to  perpetuate  testimony,  when  admissible,  §  518. 
state  laws  prescribed  by,  §  519. 
testimony,  compelling  for  depositions. 

under  a  commission,   §   516. 

depositions  to  be  used  in  foreign  country,  §  524. 

perpetuation  of,  under  state  laws,  §  518. 

witnesses,  see  that  heading  and  below, 
time,  depositions  in  equity,  §  502. 

at  law,  §  501. 
witnesses. 

attendance  de  bene  esse,  §  508. 


INDEX 

DEPOSITIONS— continued.   ' 
witnesses. 

attendance  under   commission,   §   516. 
exemption  under  commission,  §  515. 
to  be  used  in  foreign  country,  §  524. 
depositions  de  bene  esse,  §  508. 
depositions  under  commission,  §§  516,  517. 
fees  for  depositions,  District  of  Columbia,  §  550. 
foreign  country,  letters  rogatory,  §  523. 

depositions  to  be  used  in,  §  524. 

incrimination,  depositions  to  be  used  in  foreign  country,   §  525. 
written  instruments,  production  of,  depositions  under  commission,  §  517. 

DEPUTY  CLERKS, 

district  courts,  §  34. 
Supreme  Court,  §  2542. 

DEPUTY  MARSHAL, 

district  court,  §  36. 

DESIGNATION, 

additional  district  judge. 

accumulation  of  business,  §  25. 
change  of,  §  21. 
Chief  Justice's,   §   26. 
disability  of  incumbent,  §  24. 

DESTROYED  RECORDS, 

see  Lost  or  Destroyed  Records. 

DETENTION, 

letters  carried  contrary  to  law,  §  2242. 
same,  disposal  of,  §  2243. 

DIAGRAMS, 

circuit  court  of  appeals. 

Rule  34  C.  C.  A.  Appendix. 

Rule  32  C.  C.  A.  (3d,  7th,  8th,  9th  circuits)  Appendix. 

DIFFERENCES, 

bill  in  Federal  and  state  courts,  §  891. 
complaint  at  law,   Federal  and  state,  §  600. 
complaint  in  equity,  Federal  and  state,  §  891. 

DIMINUTION  OF  RECORD,  §  2085. 

DIRECT  APPEAL  TO  SUPREME  COURT, 

one  record  sufficient  for  both  parties,  §  2071. 


960  INDEX 

DIRECTION, 

habeas  corpus  writ,  §  2205. 

DISABILITY  OF  DISTRICT  JUDGE, 
designation  of  another  judge,  §  24. 

DISCHARGE  FROM  ARREST, 

execution,  conforms  to  state  laws  in  civil  actions,  §  797. 
indigent  convicts  imprisoned  for  fines,  §  2153. 
poor  debtor,, in  government  suit,  §§  798,  799. 
seamen,   §  208. 

DISCOVERY, 

at  law,   §   711. 
in  equity. 

after  issue,  §  870. 
answer   in  equity,   §  075. 
before    issue,    §    862. 
bill  in  equity,  §  900. 

by  defendants,  §  870. 
by  plaintiff,  §  862. 
time  for,  §§  862,  870. 

DISMISSAL  OF  APPEALS,  §  2084. 
circuit  court  of  appeals. 

Rule  20  C.  C.  A.  Appendix. 

Rule  19  C.  C.  A.  (3d  circuit)   Appendix, 
law  actions,  §  713. 

cases  fraudulently  or  improperly  removed,  §  310. 
motion  to  dismiss,  see  that  heading. 

DISPOSAL, 

letters  seized  as  carried  contrary  to  law,  §  2242. 

DISPOSITION, 

party,  habeas  corpus,  §  2211. 

DISQUALIFICATION, 

re  practice  in  court  of  claims,  §  2302. 

DISSOLUTION, 

attachment,   §  624. 
temporary  restraining  order,  §   1059. 

injunction  on  distress  warrant  against  officer  for  failure  to  account  for 
public  moneys,  §  1074. 

DISTRESS  WARRANT, 

injunction  on,  against  officer  for  failure  to  account  for  public   moneys, 
§§  1073,  1074. 


INDEX  961 

DISTRIBUTING  RECORDS, 

Rule  23  C.  C.  A.   (3d  circuit)   Appendix. 

DISTRICT, 

subpoena  for  witnesses  in  another,   §  483. 
witnesses,  subpoena  for,  in  another,  §  483. 

DISTRICT  ATTORNEY, 

counsel  to  aid,  §§  32,  39. 

district  court,   §§   32,  39. 

fees  of,  §  541. 

witnesses,  recognizance  of,  in  criminal  cases,  §  482. 

DISTRICT  COURT, 

accumulation  of  business,  disposal  of,  §  25. 
action  at  law,  see  that  heading,  ch.  18. 

rules  governing,  §  72. 
additional  judges,  assignment  of,  §  25. 

designation  of,  §  26. 

duties  and  powers,  §  29. 
adjournments,  when  judge  absent,  §  63. 

monthly  to  expedite  criminal  cases,  §  66. 
admission  to  practice,  §  71. 
affidavit,  bias  or  prejudice  of  judge,  §  31. 
amount  in  controversy,  see  that  heading,  ch.  9. 
appeals. 

direct   to   Supreme   Court,   §   2001. 

direct  to  Supreme  Court,  time  for,  §  2052. 

circuit  court  of  appeals,  §  2031. 
time  for,  §  2053. 

interlocutory  orders  to  circuit  court  of  appeals,  §  2032. 

receivership  proceeding  to  circuit  court  of  appeals,  §  2032, 

appellate  jurisdiction,  §§  190,  202,  203,  205. 

appointment  of  additional  judges,  change  of,  §  27. 

assignment  of  additional  judges,  §§  24,  25,  26. 

assistant  district  attorneys  in,  §  40. 

bailiffs  of,  §  38. 

bias  of  judge  of,  §  31. 

business  divided  between,  §  24. 

disposal   of   accumulated,   §   25. 

change  in  appointments  of  judges  of,  §  27. 

Chief  Justice  may  assign  additional  judge  of,  §  26. 

circuit  judges  act  as  judges  of,  §  28. 

clerks  of,  §§  32,  33. 

commissioners  of,  §§  41,  42. 

concurrent  jurisdiction  with  state  court,  §§  190,  193. 

continuances  when  judge's  office  vacant,  §  564. 

cric-rs  of.  §  38. 

MontL'.— 61. 


962  INDEX 

DISTRICT  COURT— continued. 

court  rules,  admission  to  practice,  §  71. 

equity   suits,  §   73. 

law  actions,  §  72. 

criminal  cases,  monthly  adjournments  to  expedite,  §  66. 
decisions,  reports  of,  §  70. 
deputy  clerks  of,  §  34. 
deputy  marshals  of,  §  36. 
designation  of  additional  judges  of,  §  26. 
disability  of  judge,  substitution,  §  24. 
districts,  see  that  heading,  ch.  4. 
district  attorneys  in,  §§  32,  39. 
division  of  business  between,  §  24. 

duties  and  powers  of  additional  or  substituted  judges  of,  §  29. 
equity  suits,  rules,  §  73. 

exclusive  jurisdiction  from  state  court,  §§  190,  193. 
generally,  §§  3,  20. 

generally  as  to  jurisdiction,  ch.  6,  §  190. 
field  deputies  of  marshals   in,   §  37. 
income  tax  law,  §  24. 

injunctions,  appeals  in,  to  circuit  court  of  appeals,  §  2032. 
interest  of  judge  of,  §  30. 
judges,  see  District  Judges. 

generally,  §  21. 

number  in  several  districts,  §  22. 
judicial  districts,   ch.   4. 

officers,  ch.  2. 

jurisdiction,   see   that   heading, 
jurisdiction    in   general,    §    4. 
jurisdiction,    arbitration    disputes    common    carriers    and    employees, 

§  212. 

jurisdiction,  original  and  appellate,  ch.  6. 
jurisdiction  of. 

summary  of  provisions  affecting  the  several  matters  of  district 

court  cognizance,  ch.  12. 
law   actions,    rules,    §    72. 
marshals  of,  §§  32,  35. 
marshals  field  deputies  in,  §  37. 
masters  in  chancery  in,  generally,  §  41. 

number  in  the  several  states,  see  headings  various  states,  ch.  4. 
number   of   judges   in   several   districts,   §   22. 
officers,  ch.  2. 
organization  of,  ch.  2. 
organization,  further  as  to,  ch.  3. 

special  terms,  adjournments,  continuances,  records, 

reports  of  decisions,  rules  in  law  and  equity,  ch.  3. 
original  and  appellate  jurisdiction,  ch.  6. 


INDEX  963 

DISTRICT  COURT— Continued. 

original  jurisdiction,  §§  190,  194. 
places  for  holding,  ch.  4. 

see  under  heading  various  states. 

powers  and  duties  of  additional  or  substituted  judges  of,  §  29. 
practice,  admission  to,  §  71. 
prejudice  of  judge  of,  §  31. 
procedure,  see  that  heading. 

procedure  when   interest  or  relationship   of   judge  appears,   §   30. 
receivers,  in,  generally,  §  41. 

receiverships,  appeals  in,  to  circuit  court  of  appeals,  §  2032. 
reclamation  act,  §  210. 
records,  place  for  keeping,  §  68. 

transfer  of  territorial,  §  69. 
removal,    see   that   heading,   ch.    10. 
reports  of  decisions,  §  70. 
rules,  admission  to  practice,  §  71. 

law  actions,  §  72. 
rules  equity  suits,   §  73. 
special  terms,   §  62. 
states,  places  of  holding  court  in,  ch.  4. 
substitution  of  judges  for  disability  of  one,  §  24. 
substitution  of  judges  of,  when  interest  or  relationship  of  incumbent 

appears,  §  30. 

substitution  of  judges  in,  when  bias  or  prejudice  shown,  §  31. 
suits  in  equity,  rules,  §  73. 
summaries,  jurisdiction,  amount  and  venue  for  the  several  matters 

of  district  court  cognizance,  ch.  12. 
terms. 

altering,  effect  of,  §  67. 

judicial  district,  ch.  4. 

special,  §  62. 
time  for  appeal. 

to  circuit  court  of  appeals,  §  2053. 

to  Supreme  Court,  §  2052. 
time  and  places  for  holding  court  in  the  several  districts,  ch.  4. 

see  under  headings  of  the  several  states, 
trials,  conclusion  of,  in  new  term,  §  65. 
United  States  district  attorney  in,  §  39. 
venue,  see  that  heading, 
when  open,  §  61. 
writ  of  error  to  circuit  court  of  appeals,  §  2031. 

time  for,  §  823. 
writ  of  error  to  Supreme  Court,  time  for,  §  822. 

DISTRICT  COURT  OF  ALASKA, 

procedure  on  appeal  to  Supreme  Court,  §  2076. 


964  INDEX 

DISTRICT  COURT  OF  PORTO  RICO, 
procedure  on  appeal  from,  §  2077. 

DISTRICT  JUDGE, 

accumulation  of  business,  disposal  of,  §  25. 
additional,  assignment  of,  §  25. 

designation  of,  §  26. 

disability  of  incumbent,  §  24. 
affidavit  bias  or  prejudice,  §  31. 
appointment,  accumulation  of  business,  §  25. 

change  of,  §  27. 

Chief  Justice's,  §  26. 

disability  of  incumbent,  §  24. 
bias  or  prejudice,  affidavit  of,  §  31. 
circuit  judge  acting  as,  §  28. 
designation  of  additional,  §§  24,  25,  26. 
disability,  designation  of  another  judge,   §  24. 
distribution  of  business,   §  24. 

duties  and  powers  of  additional  or  substituted  judge,  §  29. 
interest  of  incumbent,  outside  judge,  §  30. 
number  of,  in  the  several  districts,  §  22. 
prejudice,  affidavit  of  bias  or,  §   31. 
procedure,  bias  or  prejudice  of  incumbent.  §  31. 

interest  or  relationship  of  incumbent,  §  30. 
relationship  of  incumbent,  outside  judge,  §  30. 
vacancy  in  office,  continuance,  §  64. 

DISTRICT  OF  COLUMBIA, 

appeal  and  error  to  Supreme  Court,  §§  2018,  2019. 
appellate  procedure,  §  2079. 
certification  to  Supreme  Court,  §  2080. 
diverse  citizenship,  not  a  citizen,  §  232. 
procedure  on  appeal  from  court  of  appeals,  §  2079. 

DISTRICTS, 

see  also  Judicial  Districts,  ch.  4. 

Alabama,  §  101. 

Arkansas,  §  102. 

Arizona,  §  103. 

California,  §  104. 

Colorado,  §  105. 

Connecticut,  §  106. 

Delaware,   §   107. 

Florida,  §  108. 

Georgia,  §  109. 

Idaho,  §  110. 

Illinois.   §   111. 

Indiana,  §  112. 


INDEX  965 

DISTRICTS — continued. 
Iowa,  §  113. 
Kansas,  §  114. 
Kentucky,  §   115. 
Louisiana,  §  116. 
Maine,   §   117. 
Maryland,  §  118. 
Massachusetts,   §   119. 
Michigan,  §  120. 
Minnesota,  §  121. 
Mississippi,  §  122. 
Missouri,  §  123. 
Montana,   §   124. 
Nebraska,  §  125. 
Nevada,  §  126. 
New  Hampshire,  §  127. 
New  Jersey,  §  128. 
New  Mexico,  §  129. 
New  York,  §  130. 
North  Carolina,   §   131. 
North    Dakota,    §    132. 
Ohio,  §  133. 
Oklahoma,  §   134. 
Oregon,    §    135. 
Pennsylvania,  §  136. 
Rhode  Island,  §  137. 
South  Carolina,  §  138. 
South   Dakota,   §   139. 
Tennessee,  §  140. 
Texas,  §  141. 
Utah,  §  142. 
Vermont,  §  143. 
Virginia,  §  144. 
Washington,   §   145. 
West  Virginia,  §  146. 
Wisconsin,  §  147. 
Wyoming,  §  148. 

DISTRICTS,  JUDICIAL, 

see  table  of  contents,  chapter  4  or  under  the  name  of  each  state. 

DIVERSE  CITIZENSHIP, 
aliens,  §  242. 

bond  in  removal  cases,  §  291. 

change  of  citizenship  to  give  jurisdiction,   §  246. 
change  of  domicil  after  suit  commenced,  §  24o. 
collective  term,  §  244. 

commencement  of  suit,  change  of  domicil  afterwards,   §  245. 
constitutional  provision,  §  2. 
corporations,  §  234. 
defined.  §  231. 


966  INDEX 

DIVERSE  CITIZENSHIP— continued. 

District   of   Columbia   citizens   not  meant,   §   232. 
domicil. 

change  of,  in  cases  of  diverse  citizenship,  §  245. 
domicil,   change   of,   after  suit  commenced,   §  245. 
Federal   question    does   not    involve,    §   222. 
general  statement,  §  230. 
ground  of  jurisdiction,  ch.  8. 
guardians,  §  241. 
Indians,   §   243. 
issue  how  raised,  §  249. 
joint  stock  companies,  §  235. 
jurisdiction. 

basis  for,  ch.  8. 

change  of  domicil  after  suit,  §  245. 

shifting  parties  to  create,  §  247. 

transfer  of  subject-matter  to  create,  §  246. 

venue  as  affecting,  §  248. 

married  women,  §  238. 

national   banks,   §   237. 

parties,  shifting  of,  to  create,   §  247. 

partnerships,  §  236. 

personal  representatives,   §   239. 
removal  of  causes,  §§  286,  288. 

remanding  or  dismissing  cases  fraudulently  or  improperly  removed,  §  310. 
representatives,  §  239. 
shifting  parties  to  create,  §  247. 
states  not  citizens,  §  233. 

subject-matter,  transfer  of,  to  give  jurisdiction,  §  246. 
summary  of  several  jurisdictional  provisions  affecting,  §§  356,  357,  358. 
territorial  citizens  not  meant,  §  232. 
territories  not  citizens,  §  233. 

transfer  of  subject-matter  to  give  jurisdiction,  §  246. 
trial,  want  of,  appearing,  §  250. 
trustees,  §  240. 

venue  affected  by,  in  cases   involving  Federal  question,   §   222. 
venue  as  affecting  jurisdiction,  §  248. 
what  is,  §  231. 
when  want  of,  appears  on  trial,  §  250. 

DIVISION  OF  BUSINESS  DISTRICT  COURT,  §  24. 

DOCKET, 

circuit  court  of  appeals,  Rule  17  C.  C.  A.  Appendix. 

DOCKETING, 

cases  in  circuit  court  of  appeals,  Addenda  Rule  45  C.  C.  A.  Appendix. 

DOCKETING  CASE, 

Rule  16  C.   C.  A.  Appendix. 


INDEX  96T 

DOCUMENTS, 

demand  to  admit  execution  and  genuineness,  §  1011. 
deposition  under  commission,   production   of,   §   517. 
production  of,  on  deposition  under  commission,  §  517. 

DOMESTICS  OF  AMBASSADORS,  ETC., 
Supreme  Court,  suits  against,  in,  §  2458. 

DRAWING  JURY, 

trial  law  actions,  place  from  where,  §  738. 

DUTIES, 

see  customs  duties;  jurisdiction  district  court,  §  199. 
assignee  of  debenture  for  drawback  of,  §  368. 
special  bail  in  suit  for,  §  2228. 

statute  of  limitations  for  violation  laws,  §§  399.  400. 
summary  of  several  jurisdictional  provisions,  §  368. 
interest,  kind  of  money  payable  in  suits  for,  §  784. 

DUTIES  OF  MARSHAL, 
Supreme.  Court,  §  2453. 

DUTIES  OF  REPORTER, 
Supreme  Court,  §  2454. 

DUTY, 

removal  of  causes,  state  court  on.  §  292. 

E. 

EFFECT, 

answer  in  equity,  §§  970,  971. 

counterclaim  in  equity,  §§  980,  981. 

failure  to  plead  counterclaim  or  set-off,  §  983. 

set-off,  §§  980,  981. 

verdkt,  §  761. 

valid  set-off  or  payment  on  amount  in  controversy,  §  267. 

EMBARGO, 

seizure  for  venue,  §  178. 

EMPLOYERS'  LIABILITY  ACT, 

statutes  of  limitations,  §  408. 

removal  of  causes,  common  carrier,  cases  are  not  removable,  §  299. 

ENFORCEMENT, 

decree,   equity   suits,   §   1082. 
injunction,  §   1066. 


9C8  INDEX 

ENFORCEMENT  OF  LIEN, 

upon  creation  or  transfer  of  district  or  territory,  venue,  §  170. 

ENFORCING  ATTENDANCE, 

see  also  Witnesses,  subhead  Attendance, 
depositions,  de  bene  esse,  of  witnesses,  §  508. 

under  commission,  of  witnesses,  §  516. 

for  foreign  country,   of   witnesses,   §   524. 
witnesses  for  depositions  de  bene  esse,  §  508. 

under  commission,  §  516. 

for  foreign   country,   §   524. 

ENFORCING  TESTIMONY  OF  WITNESSES, 

see  Witnesses,  Testimony,  §§  486,  492,  495,  497. 

EQUITABLE  DEFENSE, 
law  actions,  §  675. 

EQUITY  PROCEDURE, 
see  Equity  Suit. 

EQUITY  SUIT, 

adjournment,  see  Continuances,  ch.  29,  §  2068. 

amended  bill,  time  to  answer,  §  868. 

answer,  (see  that  heading,  ch.  34)  time  for,  §  865. 

after  overruling  motion  to  dismiss,  §  867. 

time  for,  to  amended  bill,  §  868. 
better  statement,  obtaining,  §  954. 
bill   (see  Bill  in  Equity,  ch.  30)   amendment,  time  for  answer,  §  868. 

general  statement,  §  860. 
calendar,  reinstatement  of  case  on,  §  879. 

trial,  §  876. 

certainty,  obtaining,  §  954. 
continuances,   §  878. 
counterclaim  or  set-off  (see  that  heading),  §§  980,  981,  982,  983. 

issue,  §  875. 

reply  to,  §  874. 

time  for  serving  copy  of,  §  872. 
cross  bill  now  in  the  counterclaim,  §  982. 
decree,  see  that  heading,  ch.  38. 
decree  pro  confesso,  see  that  heading,  ch.  32. 
defect  of  parties  in,  §  957. 

defense,  see  Decree  pro  Confesso,  ch.  33,  Answer  in  Equity,  ch.  34. 
defense  in  point  of  law,  §  956. 
defense,  motion  to  strike  out,  §  873. 
defensive  pleading,  see  that  heading,  ch.  33.  §  950. 

kinds  of,  §  950. 

law,  defense  in  point  of,  §  956. 

motion  to  strike.  §  873. 

time  for,  §  860. 


.INDEX  9G9 

EQUITY  SUIT— continued. 

deliniteness,  to  obtain,  §  954. 

depositions   (see  that  heading,  ch.  16)   after  issue,  §  503. 

after  case  on  trial  calendar,  §  877. 

before  issue,  §  871. 

form  of  rule,  §  510. 

generally,  §  863. 

grounds  for  taking,  §  504. 

objections,  rule,  §  511. 

publication  or  filing,  §  522. 

signing,  rule,  §  510. 

time  for  taking,  §§  502,  503. 
differences  from  law,  §  6. 
discovery,  see  that  heading. 

after  issue,  §  870. 

before  issue,  §  862. 

by  defendant,  §  870. 

by  plaintiff,  §  862. 

time  for,  §§  862,  870. 
evidence,  see  that  heading,  ch.  14. 

in,  §  1003. 

form  of  deposition,  rule,  §  510. 
forms  in,  see  that  heading, 
grounds  for  taking  depositions,  §  504. 
hearing,  motion  to  dismiss,  §  866. 

motion  to  strike  out  defense,  §  873. 

trial  calendar,  §  876. 
impertinent  matter,  removal  of,  §  955. 
interrogatories  by  defendant,   §   870. 

by  plaintiff,  §  862. 

time  for,  §§  862,  870. 
irrelevant  matter,  removal  of,  §  955. 
issue,  depositions  after,  §  503. 
issue  in,  see  that  heading, 
issue  when  no  counterclaim  or  set-off,   §   869. 

when  counterclaim  or  set-off  pleaded,  §  875. 
lawsuit  begun  as,  §  602. 

masters  in  chancery,  see  that  heading,  ch.  36. 

motion,  see  under  Decree  pro  Confesso,  ch.  33;   Motions,  and  Pleadings, 
motion  to  dismiss,  §  866. 

time  for  answer  after  overruling,  867. 
motion  to  strike  out  defense,  §  873. 
motion  to  transfer  to  law  side,  §  936. 
objections  to  depositions,  §  511. 
orders,  notices  of,  §  958. 
particulars,  obtaining,  §  954. 
pleading   in,   see  under   headings   of   various   pleadings,   and   the  general 

heading,  Pleading. 


970  INDEX 

EQUITY  SUIT— continued. 

practice,  summary  of  proceedings,  ch.  29. 

precipe  for  subpoena,  general  statement,  §  861. 

proceedings  in,  summary,  ch.  29. 

publication  of  deposition  on  filing,  §  522. 

redundant  matter,  removal  of,  §  955. 

reinstatement  case  on  calendar,  879. 

removal  of  redundant,  scandalous,  or  impertinent  matter,  §  855. 

reply  to  counterclaim  in  equity,  §  979. 

reply,  time  for,  §  874. 

return  of  subp<jena,  §  864. 

rule  as  to  form  of  deposition,  §  510. 

objections  to  deposition,  §  511. 

signing  deposition,  §  512. 
rules  governing,   §§  8,  73. 

summary  of  proceedings,  ch.  29. 

regulating   practice,   §   880. 
scandal,  removal  of,  §  955. 
set-off,  see  heading  Counterclaim, 
signing  depositions,  §  512. 
statement,  better,  and  particulars,  §  954. 
subpoena  for  defendants,  general  statement,  §  861. 

return   of,    §    864. 
summary  of,  §  ch.  29. 
supplemental  pleading,  see  that  heading, 
time   for. 

answer,  generally,   §   865. 

after  overruling  motion  to  dismiss,  §  866. 

counterclaim,   §  872. 

defensive  pleadings,  §  865. 

depositions,  §§  863,  871,  877. 

discovery,  §§  862,  870. 

hearing,  motion  to  dismiss,  §  866. 

interrogatories,  §§  862,  870. 

issue,  §§  869,  875. 

motion  to  dismiss,  §  865. 

motion  to  strike  out  defense,  §  873. 

pleading,  see  under  headings  various  pleadings,   and  under  heading 
Time. 

reinstatement  of  cases  on  calendar,  §  879. 

reply,   §   874. 

set-off,  §  872. 

taking  depositions,  §  502. 
trial,  see  that  heading,  ch.  35. 
trial  calendar,  §  876. 

ERROR, 

see  Writ  of  Error, 
assignment  of,  §  2059. 


INDEX  971 

ERROR— continued. 

time  for  return  of  writ,  §  2072. 

writ  of,  from  state  to  Supreme  Court,  time  for,  §  2055. 

ESCAPE, 

extradition,  retaking  person  held,  §  2189. 

EVIDENCE,  ch.  14., 

admissibility  of,  in  equity,  §  1003. 

answer  in  equity  is  not,  §  971. 

bound  copies  of  acts  as  evidence,  §§  428,  429. 

bonds  and  other  papers  of  United  States  in  settlement  of  accounts  with 

government,  §  440. 

burden  of  proof,  seizure  cases  under  customs  duties  laws,  §  458. 
clerk's  new  records  in  certain  cases,  §  455. 
clerk's  new  records  in  North  Carolina,  §  456. 
commissioner  of  Indian  affairs,  copies  of  records,  §  449. 
Comptroller   of   Currency,   copies  of   records,   §   438. 
congressional   journal,   extracts   from,   §    427. 
consular  records,  copies,  §  454. 

contracts  and  other  papers  of  the  United  States  in  settlement  with  govern- 
ment, copies,  §  440. 
copies. 

bonds  in  settlement  accounts  with  government,  §  440. 

clerk's  new  records  in  certain  states,  §  455. 
in  North  Carolina,  §  456. 

commissioner  of  Indian  affairs,  §  449. 

Comptroller  of  Currency,  records,  §  438. 

consular  records,  §  454. 

contracts  and  other  papers  of  the  United  States  in  settlements,  §  440. 

congressional  journals,  extracts  from,  §  427. 

currency,  Comptroller's  records,  §  438. 

Department  Interior,  return  of  contract,  §  444. 

Executive  Department  records,   §  436. 

foreign  letters  patent,  §  451. 

foreign   records   filed   in   Department   offices   relating  to   land   titles, 
§   426. 

Indian  affairs,  copies  of  the  commissioner's  records,  §  449. 

Land  Office  records,  §  447. 

lost  or  destroyed  records, 
judicial,  §  430. 

returns  and   official   papers  of  judicial    officers,   §   434. 
Supreme  Court  records,  §  432. 

national  bank  organization  certificates,  §  439. 

official  papers,  §  434. 

Patent  Office  records,  §§  450,  453. 

patents,  foreign  letters,  §  451. 

printed  copies  of  specifications  and  drawings  of  patents,  §  452. 

Postoffice  records,   §§   445,  446. 


972  INDEX 


EVIDENCE— continued. 

navy  records  in  suits  against  delinquents,  §  441. 
pamphlet  copies  of  statutes  and  bound  copies  of  acts,  §  428. 
printed  and  bound  copies  of  acts,   §  429. 
records. 

clerk's  new,  §§  455,  456. 
Commissioner   Indian   affairs,    §   449. 
Comptroller  of  Currency,  §  438. 
Department  of  Interior,  §  444. 
Executive  Departments,  §  436. 

foreign,  filed   in  departments   relating  to  land  titles,   §  426. 
lost  or  destroyed,  §§  430,  435. 
navy,   §   441. 

Patent  Office,  §§  450,  453. 
Postoffice,  §§  445,  446. 

Public  offices   not  appertaining  to  a  court  in  states  and   terri- 
tories, §  425. 

Solicitor  of  Treasury,   §  437. 
state,  §  425. 

Supreme  Court,  lost  or  destroyed,  §  432. 
Treasury  Department,  §§  441,  443. 
war,  §  441. 

returns,  copies  of  lost  or  destroyed,  §  434. 

returns,  of  a  contract  to  Returns  Office  Department  of  Interior,  §  4-! !. 
Solicitor  of  Treasury,  §  437. 
state  records,  §  425. 

Supreme  Court,  lost  or  destroyed  records,  §  432. 
trademarks,  §  453. 

treasury  records  in  suits  against  delinquents,  §  441. 
treasury  in  embezzlement  suits,  §  443. 
war  records  in  suits  against  delinquents,  §  441. 
court  of  claims. 

burden  of  proof,  §  2320. 
examination  of  claimant,  §  2322. 
from  Departments  and  Congress,  §  2323. 
customs  laws,  burden  of  proof,  seizure  cases,  §  458. 
currency,  copies  of  records  of  Comptroller,  §  438. 
Department  of  Interior,  copies  of  contract  returns,   §  444. 
examination  of  claimant,  court  of  claims,  §  2322. 
Executive  Department  records,  copies  of,  §  436. 
extradition   bearing,   §   2187. 

extradition  on,  only  where  establishing  probable  cause,  §  2181. 
Federal   laws. 

evidence  of,  §§  421,  423. 

pamphlet  copies  of  statutes  and  bound  copies  of  acts,  §  428. 
foreign   laws,    §   424. 
foreign  letters  patent,  §  451. 

foreign  records  filed  in  Department  Offices  relating  to  land  titles  in  Unl^J 
States,  §  426. 


INDEX  973 

EVIDENCI>-continued. 

from  Departments  and  Congress,  in  court  of  claims,  §  2323. 

general  statement,  §  420. 

Government   paramount   title   does   not   affect   possessory   action   mining 
title,  §  460. 

Indian  affairs,  copies  of  commissioner's  records,  §  449. 

judicial  notice,  seal  of  Department  Commerce  and  Labor,  §  457. 

judicial  records. 

copies  of  lost  or  destroyed,  §  430. 

Land  Office  records,  certification  of,  §  447. 

law  actions,  §  590. 

Little  and  Brown's  statutes,  §  421. 
supplement,  §  422. 

lost  or  destroyed  judicial  records,  §  430. 

lost  returns  and  official  papers,  judicial  officers,  §  434. 

lost  Supreme  Court  record,  §  432. 

national  bank  organization   certificates,   §   439. 

Navy  records  in  suits  against  delinquents,  §  441. 

objections  to,  Rule  12  C.  C.  A.  Appendix. 

official  papers,  copies  of  lost  or  destroyed,  §  434. 

pamphlet  copies  of  statutes  and  bound  copies  of  acts,  §  428. 

patents. 

copies  of  foreign  letters,  §  451. 
of  letters  patent,  §  450. 
of  trademark  records,  §  453. 
printed  copies  of  specifications  and  drawings  of,  §  452. 

Postoffice  Department  demand  on  postmasters,  §  446. 

postoffice  records,  copies,  §§  445,  446. 

printed  and  bound  copies  of  acts,     429. 

proof  state  and  foreign  legislative  acts  and  state  court  records  and  pro- 
ceedings, §  424. 

publication  of  Interstate  Commerce  Reports  and   Decisions  as  evidence, 
§  461. 

records  of  public  offices  not  appertaining  to  a  court  in  states  and  terri- 
tories, §  425. 

records,  see  that  heading  and  also  subhead  above,  Copies. 

reports  of  investigations  of  accidents  from  failure  of  boilers,  not  admis- 
sible in  damage  suits,  §  459. 

restoration  of  records,  see  that  heading,  §§  431,  435. 

returns,  copies  of  lost  or  destroyed,  §  434. 

return  of  a  contract  to  Returns  Office  Department  of  the  Interior,  §  444. 

Revised  Statutes,  authorized  editions,  §§  421,  423. 

Richardson's  Supplement  of  Revised   Statutes.   §   423. 

seizures,  customs  cases,  burden  of  proof,  §  458. 

solicitor  of  Treasury,  copies  of  records,  §  437. 

state  court  records,  §  424. 

state  laws,  §  424. 

state  records,  copies,  §  425. 

statutes,  see  Federal  Laws,  §§  421,  423. 


974:  INDEX 

EVIDENCE— continued. 

subpoena  duces  tecum  to  register  of  Land  Office,  §  448. 

supplement  of  Revised  Statutes,  §  422. 

Supreme  Court  lost  or  destroyed  records,  copies,  §  432. 

testimony  before  commissioners  court  of  claims,  §  2321. 

trademark,  copies  of  Patent  Office  records,  §  453. 

Treasury,  War,  Navy,  records  in  suits  against  delinquents,  §  441. 

Treasury  Department  books  and  proceedings  in  embezzlement  suits,  §  443. 

war  records,  copies  in  suits  against  delinquents,  §  441. 

witnesses,  see  that  heading. 

EXAMINATION  OF  CLAIMANT, 
court  of  claims,  §  2322. 

EXAMINER, 

depositions  before,  §  520. 

EXCEPTIONS,. 

bill  of,  see  Bill  of  Exceptions,  ch.  26. 
master  in  chancery's  report,  §  1034. 
trial  law  actions,  taking  of,  §  746. 
time  for  taking,  in  law  actions,  §  747. 

EXCLUSION  OF  CHINESE, 

district  court's  jurisdiction,  §  202. 

EXCLUSIVE  JURISDICTION, 
district  court,  §§  191,  192. 
Supreme  Court,  §  2458. 

EXECUTION,  ch.  27, 

allowance  of  interest  on  judgments,  §  783. 

appraisal,  personal  property,  §  804. 

arrest,  discharge  from,  in  civil  actions,  §  797. 

conformity  to  state  laws,  §  791. 

criminal  cases,  postponed  where  case  carried  to  appellate  court,  §  2151. 

death  penalty,  §  2162. 

debt,  imprisonment  for,  §  796. 

discharge  from  arrest,  §  797. 

discharge  from,  poor  debtor  in  government  suits,  §§  798,  799. 

fees  of  appraisers,  §  559. 

general  statement,  §  781. 

government  suits,  discharge  of  poor  debtor,  §  798. 

imprisonment  for  debt,  §  799. 

purchase  by  government  on  sale  of  real  estate,  §  803. 
imprisonment  for  debt,  §  796. 

discharge  from,  §  797. 
law  actions,  §  593. 
lien  not  devested  by  change  of  district,  §  788. 


INDEX  975 

EXECUTION — continued. 

x        motion  for  new  trial,  §  793. 

new  trial,  §  793. 

officers,  §  792. 

personal  property,  §§  800,  804. 

place,  where  runs  and  executed,  §  795. 

place,  sale  of  real  estate,  §  800. 

publication,  sale  of  real  estate,  §  801. 

revenue  officers,  when  not  against,  §  792. 

runs  and  is  executed  in  any  part  of  state,  §  795. 

sale  of  personal  property,  place  of,  §  800. 

sale  of  personal  property,  appraisal  of,  §  804. 

sale  of  real  estate,  place  of,  §  800. 

state  practice,  conformity  to,  §  791. 

stay  of  pending  motion  for  new  trial,  §  793. 

term,  stay  of,  for  one,  §  794. 

EXECUTION  OF  DOCUMENTS, 
demand  to  admit,  §  1011. 

EXECUTIVE  DEPARTMENT  RECORDS,  ETC., 

copies  as  evidence,  §  436. 

EXEMPTIONS, 

jury,  trial  law  actions,  §  734. 
civil  rights  acts,  735. 
after  one  term's  service  in  a  year,  §  737. 

EXHIBITS, 

of  materials,  Rule  34  C.  C.  A.  Appendix. 

Rule  32  C.  C.  A.  (3d,  7th,  8th,  and  9th  circuits)  Appendix. 

EXPERT, 

witnesses  in  patent  and  trademark  cases,  §§  1001,  1005. 

EXTRADITION, 

agent  to  receive  fugitive  from  foreign  countries,  §  2193. 

arrest  of  fugitive  from  foreign  countries,  §  2180. 

arrest  of  seamen  deserting  foreign  vessel,  §  2197. 

costs  and  fees,  §  547. 

escape,  retaking  person  held,  §  2189. 

evidence. 

extradition  granted  only  where  probable  cause  exists,   §  2181. 

hearing  upon  the  return,  §  2187. 
foreign  country. 

fugitive  from,  §  2180. 

fugitive  from  place  under  control  of  United  States,  §  2183. 
hearing. 

evidence  on,   §  2187. 

to  be  public,  §  2185. 


976  INDEX 


EXTRADITION— continued. 

hearing  to  be  on  land,  §  2185. 

where  fugitive  from  foreign  country  or  territory  under  control  of  the 

United  States,  §  2184. 
indigent  prisoners,  witnesses  for,  §  2186. 
intrastate,  §  2195. 

political  offense,  extradition  not  allowed,  §  2182. 
rescue. 

prisoner  extradited  from  foreign  country,  penalty,   §  2194. 

prisoner  extradited  from  another  state,  §  2196. 
seamen  deserting  foreign  vessel,  arrest  of,  §  2197. 
territory,    fugitive   from    foreign,    under   control    of    the    United    States, 

§  2183. 

transportation,  extradited  person  to  the  United  States,  §  2192. 
treaty,  extradition  provisions  continuing  during  existence  of,   §   2192. 
trial,  prisoner  to  be  surrendered  only  for  fair,  §  2188. 
warrant,  arrest  of  fugitive  from  foreign  countries,  §  2180. 
witnesses  for  indigent  prisoners,  §  2186. 
witness  fees,  §  547. 

F. 
FACT, 

Supreme  Court,  issues  of,  in,  §  2458. 
writ  of  error,  none  for  error  in,  §  844. 

FEDERAL  BILL  IN  EQUITY, 
see  Bill  in  Equity,  ch.  30. 

FEDERAL  COMPLAINT  AT  LAW, 

see  heading  Initial  Pleading  at  Law,  ch.  19. 

FEDERAL  CONSTITUTION, 
see  also  Constitution. 
Federal  question  arises  under,   §   219. 

FEDERAL  CORPORATIONS, 

Federal  question  involved  when  parties,  except  national  banks,  §§  217.  218. 
national  banks  as,  do  not  ipso  facto  involve  Federal  questions,  §  218. 

FEDERAL  COURTS, 
see  also  Courts. 

actions  in,  see  Law  Actions,  ch.  1. 

appellate  procedure  of,  differences  law  and  equity,  §  6. 
constitutional  powers  of,  §§  1.  2. 

circuit  court  of  appeals,  see  that  heading,  §  3,  ch.  48. 
commerce  court,  §  3. 

court  of  claims,  see  that  heading,  §  3,  ch.  47. 
court  of  customs  appeals,  see  that  heading,  §  3,  ch.  46. 


INDEX  977 

FEDERAL  COURTS— continued. 

district  courts,  see  that  heading,  §  3,  chs.  2,  3,  6. 

double  system  of,  §  5. 

enumeration  of,  §  3. 

equity  suits,  see  that  heading,  ch.  29. 

generally  as  to,  ch.  1. 

judicial  power  of,  under  the  Constitution,  §§  1,  2. 

jurisdiction  in  general,  see  Jurisdiction,  ch.  1. 

law  actions,  see  that  heading,  ch.  18. 

penal  laws  enforced  in,  §  2102. 

place  of,  in  our  judicial  system,  §  1. 

practice,  see  that  heading. 

procedure,  see  also  that  heading. 

blended,  a  future  possibility,  §  9. 

desirability  of  a  special  study  of,  §  12. 

differences  between  Federal  and  state,  §§  6,  10. 

double  system  of,  §  5. 

equity  suits,  rules  governing,  §  8,  ch.  29. 

law  actions,  conformity  to  state  practice,  §  7,  ch.  18. 
Supreme  Court,  see  that  heading,  3,  ch.  49. 

FEDERAL  JURISDICTION, 
see  also  Jurisdiction, 
of  offenses,  §  2104. 

FEDERAL  LAWS, 

appeal  to  Supreme  Court  where  Federal  laws  drawn  in  question.  §  2006. 
evidence  of,  §§  421,  423,  428. 
Federal  questions  arise  under,  §§  220,  354. 

pamphlet  copies  of  statutes  and  bound  copies  of  acts  as  evidence,  §  428. 
summaries  of  several  jurisdictional  provisions  affecting   suits  under,   in 
district  court,  see  that  heading,  ch.  12. 

FEDERAL  OFFICERS, 

see  also  Judicial  Officers. 

aliens,  suits  by,  against  officers,  removal  of.  §  301. 

certiorari  in  removal  of  suits  against  congressional  or  revenue,  §  307. 

congressional,  suits  against  removal  of.  §  304. 

Federal  question  involved  in  suits  by  or  against,  §  216. 

habeas  corpus  in  removal  suits,  §§  303,  307. 

parties  to  suit,  raises  Federal  question,  §  216. 

removal  of  causes,  aliens  against,  §  301. 

against  congressional  or  revenue  officers.  §  304. 
revenue  officers,  removal  of  suits  against,   §   304. 

FEDERAL  PROCEDURE, 

see   Procedure. 
Montg. — 62. 


978  INDEX 

FEDERAL  QUESTION,  ch.  7, 

amount  in  controversy  required,  §  223. 

arising  under  the  Constitution,  §§  219,  353,  2219. 

Federal  laws,  §§  220,  354. 

treaties,  §§  220,  355. 

banks,  national,  exception  as  to,  involving  Federal  question,  §  218. 
bill  in  Federal  court  must  show,  §  224. 
bill  in  state  court  must  show,  §  225. 
bond  in  removal  cases,  §  291. 

citizenship,  in  cases  involving  Federal  question  as  affecting  venue,  §  222. 
class  one  in  removal  cases,  §  287. 

Constitution  of  the  United  States  arising  under,  §§  219,  353,  2219. 
constitutional  provision  as  to,  §  2. 
corporations,  Federal,  arises  in  suits  involving,  §  217. 

exception  national  banks,  §  218. 
defined,  §  220. 
diverse    citizenship,    in    cases    involving    Federal    question,    as    affecting 

venue,  §  222. 
Federal  corporations,  arises  in  suits  involving,  §  217. 

exception  national  banks,  §  218. 
Federal  officers,  arises  in  suits  involving,  §  216. 
Federal  Constitution,  arising  under,  §§  219,  353,  2219. 

laws,   arising   under,    §§    220,    354. 

treaties  arising  under,  §§  220,  355. 
ground  of  jurisdiction,  ch.  7. 
ground  of  original  jurisdiction,  §  220. 
ground  for  removal,  §  221. 
issue,  how  raised,   §  226. 
jurisdiction. 

ground  of  original,  §  220. 

for  removal,  §  221. 

laws  of  the  United  States  arising  under,  §§  220,  354. 
national  banks,  suits  involving  do  not  ipso  facto  raise  Federal  question, 

§218. 

officers,  Federal,  arises  in  suits  involving,  §  216. 
original  jurisdiction,  as  a  ground  of,  §  220. 
parties  in  suits  involving,  §  222. 
pleading,  initial,  must  show  in  Federal  court,  §  224. 

state  court,  §  225. 
removal,  ground  for,  §  221. 
removal  of  causes,  §§  286,  287. 

bond,  §  291. 

remanding,  §  310. 

treaties  of  the  United  States,  §§  220,  221,  355. 
venue  as  affected  by  diverse  citizenship,  §  222. 
what  is,  §  215. 
where  must  appear  in  Federal  court,  §  224. 

state  court,  §  225. 


INDEX  979 

FEDERAL  SYSTEM, 

double,  legal  and  equitable,  §  5. 

FEDERAL  TREATIES, 
see  Treaty, 

FEDERAL  WRIT  OF  HABEAS  CORPUS, 
cases  where  it  will  issue,  §  2203. 

FEES, 

see  also  Costs  and  Fees,  ch.  17. 

amount  of,  and  mileage,  witnesses,  §§  488,  489. 

claim  cases  pending  in  Departments,  witnesses,  §  496. 

clerk  circuit  court  of  appeals,  Rule  23  C.  C.  A.   ( 7th  circuit) ,  Appendix. 

departments  claim  cases,  witnesses,  §  496. 

mileage,  witnesses,  §§  488,  489. 

double,  prohibited,  of  witnesses,  §  490. 
witnesses,  amount  and  mileage  §§  488,  489,  490. 

claims  cases  in  Departments,  §  496. 

patent  cases,  §  493. 

FIELD  DEPUTY  MARSHALS,  §  37. 

FILING, 

depositions  in  equity  published  on,  §  522. 

record,  appeal  in  circuit  courts  of  appeals,  §  2069. 

record  on  error,  §  837. 

temporary  restraining  order,   §    10CO. 

FINAL  DECISIONS, 

of  circuit  court  of  appeals,  review  by  certiorari,  §  2074. 

FINAL  DECREE, 
see  also  Decree, 
decree  pro  confesso,  when  made,  §  937. 

FINE, 

collection  of  judgment  for,  §  2152. 
costs  of  prosecution,  §  564. 
mitigation  or  remission,  §  2159. 

rules  and  mode  of  providing,  §  2160. 

or  remission,  exception,  §  2161. 
witnesses,  officers  and  informers  not  disqualified  in  suits  for,  §  473. 

FLORIDA, 

districts,  terms  and  places  of  holding  court,  §  108. 

FOLIO, 

defined,  §  558. 


980  INDEX 

FOREIGN  CITIZENS, 
see  Aliens. 

FOREIGN  CONSULS, 
see  also  Consuls, 
jurisdiction  over  disputes  of  seamen,  §§  206,  207,  208. 

FOREIGN  COUNTRY, 

deposition  on  letters  rogatory,  §  523. 

depositions  to  be  used  in,  §  524. 

extradition  of  fugitive  from  place  under  control  of  United  States,  §  2183. 

extradition  from,  §  2180. 

FOREIGN  LAWS, 

evidence  of,  §  424. 

FOREIGN  LETTERS  PATENT, 
copies  as  evidence,  §  451. 

FOREIGN  LETTERS,  ROGATORY, 

witness  fees,  §  551. 

FOREIGN  RECORDS, 

filed  in  Department  Offices  Relating  to  Land  Titles  in  United  States,  copies 
as  evidence,  §  426. 

FORFEITURE  OF  ESTATES, 

none  in  criminal  cases,  §  2165. 

FORFEITURES, 

copyright  laws,  limitations,   §  401. 

damage  suits  for  false  claims  against  United  States,  limitations,  §  402. 

high  seas,  summary  of  several  jurisdictional   provisions,   §  367. 

statutes  of  limitation,  §§  398,  399. 

summary  of  several  jurisdictional  provisions,  §  366. 

venue,  §§  176,  178. 

witnesses,  officers  and  informers  not  disqualified  in  suits  for,  §  473. 

1-ORMA  PAUPERIS, 

proceeding  in,  on  appeal,   §  2065. 

FORMS, 

affidavit  of, 

prejudice,  for  removal,  form  18,  §  295. 

return  of  subpoena  for  defendant  in  equity,  §  918. 
allowance  of  appeal,  §  2058. 
amount  in  controversy. 

issue  as  to,  allegation,  §  271. 

good  faith,  issue  as  to,  allegation,  §  271. 


IXDEX  981 

FORMS — continued, 
answer. 

equity,  rule  as  to,  §  974. 

law,  conforms  to  state  law,  §§  670,  673. 
appeal. 

allowance  of,  §  2058. 

assignment  of  errors.  §  2059. 

bond  on,  §  2061. 

bond  circuit  court  of  appeals,  8th  circuit.  Addenda  Rule  45  C.  C.  A. 
Appendix. 

briefs,  circuit  court  of  appeals,  Rule  21  C.  C.  A.    (6th  circuit),  Ap- 
pendix. 

citation  on,  §  2061. 

motion  to  dismiss,  §  2084. 

notice  of  motion  to  dismiss,  2084. 

petition  for,  §  2058. 
appearance  bond  on  writ  of  error  in  criminal  cases,  Addenda  to  Rule  37 

C.  C.  A.  (5th  circuit),  Appendix, 
assignment  of  errors,  §  2059. 

assignor's  residence  and  citizenship,  allegation  of,  §  195. 
bill  in  equity,  rule  as  to,  §  899. 

caption,  §  893. 

citizenship  of  parties,  §  894. 
bond. 

appeal,  §  2061. 

appearance  on  writ  of  error  in  criminal  cases,  Addenda  to  Rule  37 
C.  C.  A.    (5th  circuit),  Appendix. 

circuit  court  of  appeals,  8th  circuit  Addenda  Rule  45  C.  C.  A.  Ap- 
pendix. 

removal,  for,  form  12,  §  291. 

notice  of  bond,  form  13,  §  293. 
briefs. 

circuit  court  of  appeals.  Rule  21  C.  C.  A.  (6th  circuit)   Appendix, 
caption  to  bill  in  equity,  §  893. 
certificate. 

clerk's,  with  record  on  removal,  §  293. 

officers  to  deposition  dc  bene  esse,  §  509. 

questions  by  circuit  judges  to  Supreme  Court,  §  2075. 
certiorari. 

diminution  of  record,  §  2085. 

order  for,   in   suit   against   revenue   officers   for   removal    from    state 
courts,  form  21,  §  307. 

petition  and  order  for  writ  of,  §  2074. 

same  in  action  against  revenue  officers  for  removal  from   state 
court,  form  20,  §  305. 

removal  on  ground  of  prejudice  or  local  influence,  form  19.  §  2!>.~>. 

revenue  officers,  removal  of  suit^  against,  form  22,  §  309. 

writ  of,  under  §  39  Judicial  Code  in  removal  of  cases,  form  23,  §  30!). 


982  INDEX 

FORMS— continued. 

circuit  court  of  appeals,  see  Appeal  herein  above. 

bond  8th  circuit,  Addenda  Rule  45  C.  C.  A.  Appendix, 
briefs,  Rule  21  C.  C.  A.  (6th  circuit)  Appendix, 
certificate  of  questions  to  Supreme  Court,  §  2075. 
citation  on  appeal,  §  2060. 

8th  circuit  Addenda  Rule  45  C.  C.  A.  Appendix, 
citizenship. 

answer  setting  up  lack  of  diversity  of,  §  249. 
assignor  of  plaintiff,  allegation  of,  §  195. 
bill  in  equity,  parties  to,   §  894. 
corporations,  allegations  of,  §§  234,  894. 
motion  to  dismiss  for  lack  of  diversity  of,  §  249. 
clerk's  certificate  with  record  on  removal,  §  293. 
complaint  at  law,  §  604. 

conforms  to  state  law,  §  581. 

corporations,  citizenship  and  residence  of,  allegations  of,  §§  234,  894. 
counterclaim  in  equity,  rule  as  to,  §  980. 
criminal  cases. 

appearance  bond  on  writ  of  error  to  circuit  court  of  appeals,  Ad- 
denda to  Rule  37  C.  C.  A.   (5th  circuit)   Appendix, 
indictments. 

defects  in  form  may  be  disregarded  when  immaterial,  §  2124. 
navy  court  martial,  law  as  to  indictment.  §  2122. 
perjury,  law  as  to  indictment,  §  2120. 
subornation  of  perjury,  law  as  to  indictment,  §  2121. 
decree,  equity  suits,  rules  as  to,  §  1080. 

defensive  pleading  at  law  conforms  to  state  law,  §§  670,  673. 
deposition. 

certificate  of  officer  to  deposition  de  bene  esse,  §  509. 
de  bene  esse  deposition,  §  509. 
equity  rule  as  to,  §  510. 
notice  of  taking,  §  507. 
diminution   of   record,   certiorari,   §   2085. 
diverse  citizenship,  see  "citizenship"  above, 
answer  setting  up  lack  of,  §  249. 
motion  to  dismiss  for  lack  of,  §  249. 
equity. 

answer,  rules  as  to,  §  974. 
bill. 

caption,  §  893. 

citizenship  and  residence  of  parties,  allegation.  §  894. 
corporation's  citizenship  and   residence,  allegation,   §§  234,   894. 
rules  as  to,  §  899. 

counterclaim  in  equity,  rule  as  to,  §  890. 
decree,  rules  as  to,  §  1080. 
deposition,   §§  509,  510. 
process,    §    913. 

returns  of,  rule  and  form,  §§  918,  919. 
subpoena   for   defendant,   §   913. 


INDEX  983 

FORMS— continued. 

errors,  assignment  of   (see  also  Appeal  above  and  Writ  of  Error  below) 

§  2059. 

Federal  question,  allegation  raising  issue  of,  §  226. 
general  verdict  conforms  to  state  law,  §  761. 

good  faith  of  amount  in  controversy,  allegation  raising  issue,  §  271. 
Hawaii,  writ  of  error  to  supreme  court  of,  §  2081. 
indictment, 

defect  in  form  disregarded  when  immaterial,  §  2124. 

navy  court  martial,  law  as  to,  §  2122. 

perjury,  law  as  to,  §  2120. 

subornation  of  perjury,  law  as  to,  §  2121. 
initial  pleading, 

equity,  see  Bill  in  Equity,  above,  §§  893,  894,  899. 

law,  see  Complaint  at  Law,  above,  §§  581,  604. 
issue, 

amount  in  controversy,  allegations,  §  271. 

diverse  citizenship,  answer  and  motion  to  dismiss  raising,  §  249. 

Federal  question,  allegation  raising,  §  226. 

good  faith  of  amount  in  controversy,  allegation,  §  271. 
law  action, 

complaint,   §§  581,  604. 

defensive  pleading  conforms  to  state  law,  §§  670,  673. 

process  conforms  to  state  practice  except  signatures,  seal  and  tcste, 

§§  583,  650,  652. 

local  influence,  petition  for  removal  on  ground  of,  form  17,  §  295. 
mandate  to  district  court,  §  2086. 
motion  to  dismiss, 

appeal,   §   2084. 

notice  of,  §  2084. 

diverse  citizenship,  lack  of,  §  249. 

venue  improperly  laid,  §  181. 
motion  to  remand  to  state  court,  form  24,  §  310. 
navy  court  martial  indictments,  law  as  to,  §  2122. 
notice, 

appeal,  motion  to  dismiss,  §  2084. 

deposition,  taking  of,  §  507. 

removal,  form  16,  §  293. 

of  petition  and  bond,  form  13,  §  293. 
order  for, 

allowance  of  appeal,  §  2058. 

allowance  of  writ  of  error  to  state  court,  §  339. 

remanding  to  state  court,  §  310. 

removal,  form  14,  §  293. 

supersedeas  on  appeal,  §  2063. 

writ  of  certiorari,  §  2074. 

writ  of  error  to  state  court,  §  339. 
perjury,  indictment  for,  law  as  to,  §  2120. 


984  INDEX 

FORMS — continued, 
petition, 

appeal,  §  2058. 
certiorari, 

diminution  of  record,  §  2085. 
for  writ  of,  §  2074. 
removal, 

certiorari,  for,  against  revenue  officers,  form  20  §  305. 

citizen  against  alien,  form  8,  §  290. 

Federal  question,  on  ground  of,  forms  1,  3,  4,  §  290. 

local  influence,  on  ground  of,  form  17,  §  295. 

nonresident  plaintiff  against  nonresident  defendant,  form  5,  §  290. 

notice  of  petition,  form  13,  §  293. 

prejudice,  on  ground  of,  form  17,  §  295. 

resident  plaintiff  against  alien  defendant,  form  9,  §  290. 

resident   plaintiff   against   defendant   and    a    resident   defendant 

who  has  disclaimed,  form  7,  §  290. 

resident  plaintiff  against  nonresident  defendant,  form  6,  §  290. 
separable  controversy,  form  10,  §  290. 

after  dismissal  of  suits  against  other  defendants,  form  11, 

§  290. 

writ  of  error  to  state  court,  §  339. 

pleadings  circuit  court  of  appeals,  Rule  21  C.  C.  A.  (6th  circuit)  Appendix, 
precipe  for  subpoena,  §  912. 

prejudice,  petition  for  removal  on  ground  of,  form  17,  §  295. 
printed  records,  circuit  court  of  appeals,  Rule  26  C.  C.  A.  Appendix, 
process  in  equity,  §  913. 

rule  as  to  §  911. 
return  of,  §  918. 

rule  as  to,  §  919. 
process   at   law   conforms   to   state   practice   except   signatures,   seal    and 

teste,  §§  583,  650,  652. 

question,  Federal,  issue  as  to,  allegations  of,  §  226. 
record, 

circuit  court  of  appeals,  Rule  21  C.  C.  A.   (6th  circuit)   Appendix. 

printed,  Rule  26  C.  C.  A.  Appendix. 

clerk's  certificate  with  record  on  removal  form  15,  §  293. 
remanding  to  state  court, 

motion  and  order  for,  §  310. 
removal, 

affidavit  of  prejudice,  form  18,  §  295. 

bond  on,  form  12,  §  291. 

certiorari,  petition  for,   in   action  against  revenue  officers,   form  20, 

§   305. 

citizen  against  alien,  petition,  form  8,  §  290. 
clerk's  certificate  with  record,  form  15,  §  293. 
Federal  questions,  petitions  on  ground  of,  form  1,  3,  4,  §  290. 
motion  to  remand  on  ground  of  no  jurisdiction  under.  §  37  Judicial 
Code,  form  24.  §  310. 


INDEX  985 


FORMS— continued. 

removal,  notice  of,  form  16,  §  293. 

petition  and  bond  for,  form  13,  §  293. 
order  for,  form  14,  §  293. 

remanding,  form  25,  §  310. 
petitions, 

certiorari  in  actions  against  revenue  officers,  form  20,  §  305. 

citizen?  against  alien,  form  8,  §  290. 

Federal  question,  on  ground  of,  forms  1,  3,  4,  §  290. 

local  influence,  on  ground  of,  form  17,  §  295. 

nonresident  plaintiff  against  nonresident  defendant,  form  5,  §  290 

notice  of  petition  and  bonds,  form  13,  §  293. 

prejudice,  on  ground  of,  form  17,  §  295. 

resident  plaintiff  against  alien  defendant,  form  9,  §  290. 

resident  plaintiff  against  defendant  and  resident  defendant  who 

has  disclaimed,  form  7,  §  290. 

resident  plaintiff  against  nonresident  defendant,  form  6,  §  290. 
separable  controversy,  form  10,  §  290. 

after  dismissal  of   suit  against  other  defendants,   form   11, 

§  290. 

verification  of  petition  by  attorney,  form  2,  §  290. 
writ  of  error  to  state  court,  §  339. 
writ  of  certiorari  for  removal  in  action  against  revenue  officers, 

form  21,  §  307. 
order  for,  form  22,  §  309. 
petition  for,  form  20,  §  305. 

writ  of  certiorari  for  removal  on  ground  of  prejudice  or  local  in- 
fluence, form  19,  §  295. 

writ  of  certiorari,  under  §  39.  Judicial  Code,  form  23,  §  309. 
writ  of  error  to  state  court.  §  339. 

order  allowing  writ,  §  339. 
residence. 

assignor  of  plaintiff,  allegation  of,  §  195. 
corporations,  allegations  of,  §  234. 
parties  to  bill  in  equity,  allegations  of,  §  894. 
return  of  subpoena  for  defendant  in  equity,  §  918. 

rules  as  to,  §  919. 

return  of  writ  of  error,  8th  circuit,  Addenda  to  Rule  45  C.  C.  A.  Appendix. 
separable  controversy, 

petition  for  removal  of,  form  10,  §  290. 

petition   for   removal   of,   after   dismissal  of   suits   against   other   de- 
fendants, form  11,  §  290. 
set-off  in  equity,  rule  as  to,  §  980. 
subpoena  of  perjury,  indictment  for.  law  as  to,  §  2121. 
subpoena  for  defendant  in  equity,  §  913. 
precipe  for,  §   912. 
return  of,  §  918. 
Bupersedeas  order  on  appeal,  §  2063. 


986  INDEX 

FORMS — continued, 
venue, 

answer,  allegations  in,  as  to  improper,  §  181. 
corporation's,  allegations  of,  §  181. 
motion  to  dismiss  for  improper,  §  181. 
writ  of  certiorari, 

diminution   of   record,   §   2085. 
petition  and  order  for,  §  2074. 
removal  of  causes, 

local  influence  or  prejudice,  form  19,  §  295. 
revenue  officers,   suits  against, 
petition  for,  form  20,  §  305. 
order  for,  form  21,  §  309. 
writ  of,  form  22,  §  309. 
under  §  39,  Judicial  Code,  form  23,  §  309. 
writ  of  error, 

clerk's  certificate  to  transcript,  §  836. 

circuit  court  of  appeals,  8th  circuit,  Addenda  Rule  45  C.  C.  A.  Ap- 
pendix, 
criminal  cases,  appearance  bond  on  error  to  circuit  court  of  appeals, 

Addenda  to  Rule  37  C.  C.  A.   (5th  circuit),  Appendix. 
Hawaii,  to  supreme  court  of,  §  2081. 

return  of,  8th  circuit,  Addenda  to  Rule  45  C.  C.  A.  Appendix, 
state  court  to, 

order  allowing  writ,  §  339. 
petition  for  writ,  §  339. 
writ,  §  339. 
writ  of  mandate  to  district  court  on  reversal,  §  2086. 

FRAUD, 

removal  of  causes,  ground  for  remanding  or  dismissal,  §  310. 

G. 

GARXISHEE, 

see  also  Garnishment, 
issue  by,  §  638. 
judgment  against,  §  639. 

GARNISHMENT, 

see  also  Attachment. 

effect  of,  §  635. 

general  statement,  §  634. 

government  suits  against  corporations,  §  640. 

same,  issue  tendered  when  garnishee  denies,  §  641. 

same,  garnishee  in  contempt  on  failing  to  appear,  §  642. 
issue  by  garnishee,  §  638. 
judgment  against  garnishee,   §   639. 
law  actions,  §  582,  ch.-20. 
notice  of.  §  636. 


INDEX  987 

GARNISHMENT— continued, 
persons  subject  to,  §  637. 
postal  suits  against  delinquents,  §  631. 
property  subject  to,  §  637. 
state  laws,  adoption,  §  610. 

GENERAL  APPRAISERS,  BOARD  OF,  §  2251. 

GENERAL  STATEMENT, 
actions  at  law,  §  580. 
amount  in  controversy,  §  260. 
amount   in   controversy,   summaries   of   several   jurisdictional   provisions, 

§  350. 

answer  in  equity,  §  970. 

appellate  jurisdiction  circuit  court  of  appeals,  §  2030. 
appellate  jurisdiction  of  the  Supreme  Court,  §  2000. 
appellate  procedure,  equity,  §  2050. 
appellate  procedure  at  law,  §  820. 
bill  in  equity,  §  890. 
circuit  court  of  appeals,  §  3. 
clerk  district  court,   §  32. 
commerce  court,  §  3. 
continuances,  law  actions,  §  690. 
costs  and  fees,  §  530. 
counterclaim  in  equity,  §§  970,  980. 
court  commissioners,  district  court,  §  32. 
court  of  claims,  §  3. 
court  of  customs  appeals,  §§  3,  2250. 
defensive  pleading,  law  actions,  §  670. 
depositions  de  bene  esse,  §  500. 

under  commission,  §§  500,  514. 
district  attorneys,  district  court,  §  32. 
district  court,  §§  3,  20. 

jurisdiction,  §  190. 
diverse  citizenship,  §  230. 
evidence,  §  420. 
executions,   §   781. 

form  and  effect  of  general  verdict,  §  761. 
garnishment,  §  634. 
judgments  law  actions,  §  780. 
judges  district  court,  §  21. 
judicial  officers,  district  court.  §  20. 
jurisdiction  district  court,  §  190. 

jurisdiction,  summaries  of  several  jurisdictional  provisions,  §  350. 
law  actions,  §  580. 
marshals,  district  court,  §  32. 
masters  in  chancery,  district  court,  §  41. 
organization  district  court,  §  60. 
process  at  law,  §  650. 


988  INDEX 

( i  I :  \  ERAL  STATEMENT— continued, 
receivers,  §  41. 
removal  of  causes,  §  285. 

removal,  summaries  of  several  jurisdictional  provisions,  §  350. 
removal  by  writ  of  error  to  state  court,  §  330. 
statutes  of  limitation,  §  390. 
set-off  in  equity,  §§  970,  980. 
summaries,  jurisdiction,  amount  and  venue  for  matters  of  district  court 

cognizance,  ch.  12,  §  350. 
Supreme  Court,  §  3. 
trial,  equity  suits,  §  1000. 
trial,  law  actions,  §  730. 
venue,  §  160. 

venue,  summaries  of  several  jurisdictional  provisions,  §  350. 
verdict,  §  761. 

GENUINENESS, 

demand  to  admit,  §  1011. 

GEORGIA  DISTRICTS, 

terms,  and  places  holding  court,  §  109. 

GOOD  FAITH, 

of  amount  in  controversy,  an  issue,  §  271. 

GOVERNMENT, 

see  also  United  States. 

paramount  title  does  not  affect  possessory  action  mining  titles,  §  460. 

suits  against  corporations — garnishment,  §§  640,  642. 

credits  in,  §  2234. 

postal  suits,  §  2235. 

execution,  imprisonment  for  debt,  §§  798,  799. 
execution  purchase  by  government  on  sale  of  real  estate,  §  803. 
interest  in  postal  suits,  §  2236. 

GRAND  JUROR, 

fees  of,   §§   555,   556. 

GRAND  JURY, 

discharge  of,  §  2118. 

foreman  of,  §  2117. 

indictment  to  be  by  at  least  twelve  jurors,  §  2119. 

number  of,  §  2116. 

when  summoned,  §  2115. 

GROUNDS, 

depositions,  equity,  §  504. 
jurisdiction,  see  Grounds  of  Jurisdiction, 
removal  of  causes,  ch.  10,  §  285. 
see  that  heading. 


INDEX  989 


GROUNDS  OF  JURISDICTION, 

bill  in  equity,  allegations  of,  §  8fl5. 
complaint  at  law,  allegations  of,  §  601. 
diverse  citizenship  is,  ch.  8,  §§  356,  357,  358. 
Federal  question  is,  ch.  7,  §§  220,  354. 


H. 

HABEAS  CORPUS,  ch.  44. 
allowance  of  writ,  §  2205. 
amendment  of  return,  §  2210. 
application,  how  made,  §  2204. 
Civil  Rights  Cases,  removal,  §  303. 
congressional  officers,  removal  of  suits  against,  §  309. 
counter  allegation  on  return,  §  2210. 
constitutional  provision,  §  2200. 
courts  authorized  to  issue,  §  2201. 
custody  of  prisoners,  circuit  court  of  appeals, 

Rule  33  C.  C.  A.  Appendix. 

Rule  31  C.  C.  A.  (3d  and  7th  circuits)  Appendix. 

Rule  32  C.  C.  A.   (6th  circuit)   Appendix, 
direction   of  writ,  §  2205. 
disposition  of  party,  §  2211. 
Federal  cases  where  it  will  issue,  §  2203. 
hearing,  day  for,  §  2209. 

summary,  §  2211. 
issuance  of  writs,  §  2205. 
judges,  power  to  grant  writs,  §  2202. 
jurisdiction  to  grant,  §§  2201,  2203. 
law  of  nations,  involved,  §  2212. 
notice  when  law  of  nations  involved,  §  2212. 
person,  producing  of,  §  2208. 
removal  of  causes,  §§  303,  307. 
revenue  officers,  removal  of  suits  against,  §  307. 
return, 

amendment,   §  2210. 

denial  of,  §  2210. 

form  of,  §  2207. 

time   of,   §   2206. 
summary  hearing,  §  2211. 
time,  return  of  writ,  §  2206. 
writ, 

form  of  return,  §  2207. 

return  of,  §§  2206,  2210. 

time  of  return  of,  §  2206. 

HARBORS, 

jurisdiction   of  district  court  to  remove  obstructions,   §   200. 


990  INDEX 

HAWAII, 

appeal  and  error  to  supreme  court,  §  2014. 

appellate  procedure,  supreme  court  of,  to  United  States  Supreme  Court. 
§  2081. 

HEARING, 

circuit  court  of  appeals,  Rule  42  C.  C.  A.    (8th  circuit)    Appendix, 
criminal  cases,  monthly  adjournments  to  expedite,  §  66. 
extradition,  evidence  on,  §  2187. 

extradition  of  fugitive  from  foreign  country  or  territory  under  control  of 
the  United  States,  §  2184. 

public,  §  2185. 

on  land,  §  2185. 
habeas  corpus,  day  for,  §  2209. 

summary,  §  2211. 
motion  to  dismiss,  §  866. 

to  strike  defense,  §  873. 
reference  to  master  in  chancery,  §  1032. 
trial  calendar  equity,  §  876. 

HEARING  CALENDAR, 

see  Calendar,  Rule  22  C.  C.  A.  (6th  circuit)  Appendix. 


I. 

IDAHO, 

districts,  terms  and  places  of  holding  court,  §  110. 

ILLINOIS, 

districts,  terms  and  places  of  holding  court,  §  111. 

IMMIGRATION, 

laws,  summary  of  several  jurisdictional  provisions,  §  378. 

IMMUNITY, 

anti-trust  laws,  witnesses,  §  474. 

commerce  laws,  witnesses,  §  474. 

Congress  witnesses  testifying  before,  §  476. 

criminal  cases,  witnesses,  §§  474,  475. 

judicial  proceedings,  witnesses  in,  §  477. 

removal  by  writ  of  error  to  state  court  of  decision  against,  §  337. 

witnesses,  commerce  and  anti-trust  laws,  §  474. 

witnesses,  criminal  cases,  §§  474,  475. 

witnesses,  testimony  given  before  Congress,  §  476. 

witnesses,  testimony  in  judicial  proceedings,  §  477. 

IMPANELING  JURY, 
law  actions,  §  739. 


INDEX  991 

IMPERTINENT  MATTER, 

answer  in  equity,  motion  to  strike  from,  §  978. 
equity  suits,  removal  of,  §  955. 
motion  to  strike,  §  935. 

IMPRISONMENT, 

see  also  confinement. 

offenders   against  United   States,   §  2126. 

IMPRISONMENT  FOR  DEBT, 

execution,  state  laws  adopted,  §  796. 
suit  by  government,  §§  798,  799. 

INCOME  TAX  LAW, 

compulsory  attendance  of  witnesses,  §  498. 
jurisdiction  district  court,  §  211. 

INCOMPETENT, 

see  Competence,  Immunity. 

INDEBTEDNESS  DUE  GOVERNMENT, 
settlement  of  court  of  claims,  §  2311. 

INDEPENDENT  SUIT  IN  EQUITY, 

answer  in  equity,  counterclaim,  §  981. 

INDEX, 

judgments  law  action,  §  786. 

INDIANA, 

districts,  terms  and  places  of  holding  court,  §  112. 

INDIAN  AFFAIRS, 

copies  of  the  commissioner's  records  as  evidence,  §  449. 

INDIAN  RESERVATION, 

crimes  on,  in  South  Dakota,  §  204. 

INDIANS, 

diverse  citizenship,  not  citizens,  §  243. 

land  allotment,  summary  of  several  jurisdictional  provisions,  §  380. 

patents,  statute  of  limitations,  §  407. 

INDIAN  TREATIES, 

claims  under,  court  of  claims,  no  jurisdiction,  §  2306. 

INDICTMENT, 

capital  crimes,  accused  entitled  to  counsel  and  to  compel  witnesses,  §  2142. 
consolidation  of  charges,  §  2123. 


992  INDEX 

INDICTMENT— continued, 
defect  of  form,  §  2124. 

demurrer,  judgment  respondeat  ouster,  §  2125. 
grand  jury  by,  §  2119. 
navy  court  martial,  §  2122. 
perjury,  §  2120. 
subornation  of  perjury,  §  2121. 

INDIGENT, 

convicts,  discharge  of,  when  imprisoned  for  fines,  §  2153. 
prisoners,  extradition,  witness  for,  §  2186. 

INDIGENT  DEFENDANT, 

witnesses,  subpoena  for,  on  behalf  of,  §§  485,  53o. 

INDIGENT  PARTIES, 
costs  and  fees,  §  534. 
process  suits  in  forma  pauperis,  §  658. 
witness  fees  of  indigent  defendant  in  criminal  cases,  §  535. 

INFORMERS, 

witnesses,  not  disqualified  as  in  suits  for  fines,  penalties,  or  forfeitures. 
§  473. 

INFRINGEMENT  OF  COPYRIGHTS, 
statutes  of  limitations,  §  411. 

INFRINGEMENT  OF  PATENT, 

costs  of  suit,  §  568. 
statutes  of  limitations,  §  410. 
venue,  §  171. 

INFRINGEMENT  SUITS, 
trial  of,  §  1012. 

INITIAL  PLEADING, 

see  also  Bill  in  Equity,  ch.  30. 

at  law,  ch.  19,  §  581. 

complaint,  form  of,  §  604. 

differences  Federal  and  state,  §  600. 

effect  of  beginning  as  suit  in  equity,  §  602. 

joinder  legal  and  equitable  causes,  §  603. 

jurisdictional  grounds,  §  601. 

INJUNCTIONS, 

appeal  from  order  granting  or  denying  injunction  against  entorcement  of 

state  law,  §  1065. 

appeals  from  district  court  to  circuit  court  of  appeals,  §  2032. 
appeal,  pending  on,  §   1061. 


INDEX  993 

INJUNCTIONS— continued. 

bond,  temporary  restraining  order,  §  10f>G. 

Comptroller  of  Currency,  venue,  §  172. 

contempt,  court's  power  to  punish  for,  §  1069. 

dissolution  temporary  restraining  order,  §  1059. 

dissolution  order  on  distress  warrant  against  officer  for  failure  to  account 

for  public  moneys,  §  1074. 
distress  warrant  against  officer  for  failure  to  account  for  public  moneys, 

§§  1073,  1074. 
enforcement  of,  §  1066. 

filing  temporary  restraining  order,  §  1060. 
interlocutory   injunctions   do  not   issue   against  national   banks   in   state 

courts,  §  1071. 

judge,  power  to  issue,  §  1055. 
justice,  power  to  issue,  §  1055. 
modification  temporary  order,  §  1059. 
national  banks, 

receivership,  enjoinable,   §   1070. 

no  interlocutory  injunction  against  bank  in  state  courts,  §  1071. 
ne  exeat,  §  1067. 

notice  of  injunction  against  enforcement  state  laws,  §  1064. 
notice  temporary  restraining  order,  §  1057. 
order  for  preliminary  injunction,  see  Restraining  Order, 
pending  appeal,  §  2064. 
preliminary  injunctions,  §§  1056-1071. 
procedure, 

order  granted  without  notice,  §   1058. 

order  on  distress  warrant  against  officer  for  failure  to  account  for 

public  money,  §§  1073,  1074. 
receivership  of  national  banks,  against,  §  1070. 
scire  facias,  §  1068. 
state  court,  staying  proceedings  of,  §  1062. 

interlocutory    injunction    not   to    issue    in,    against   national    banks, 

§  1071. 

state  laws,  hearing  application  for  injunction  against  enforcement,  §  10G4. 
state  laws,  against  enforcement  of,  §  1063. 

tax,  injunction  does  not  issue  against  assessment  or  collection,  §  1072. 
temporary  restraining  order, 

bond,  §  1056. 

dissolution,  §  1059. 

filing,   §   1060. 

national  bank,  none  in  state  court,  §  1071. 

notice,  §  1057. 
writ  ne  exeat,  §  1067. 
writ  scire  facias,  §  1068. 

INSTRUCTIONS. 

trial,  law  actions,  §  749. 
Montg.— 63. 


994  INDEX 

INSTRUCTIONS  AS  TO  APPLICATIONS  FOR  WRITS  OF  CERTIORARI, 
under  §  240  of  the  Judicial  Code  Addenda  Rule  45  C.  C.  A.  Appendix. 

INSURRECTION, 

seizure  for,  venue,  §  178. 

INSURRECTIONARY, 

property  condemnation  of,  venue,  §  177. 

INTEREST, 

allowance   on   judgments,   §   783. 

circuit  court  of  appeals,  Rule  26  C.  C.  A.   (6th  circuit)   Appendix. 
Rule  28  C.  C.  A.  (3d,  4th,  7th  circuits)  Appendix. 
Rule  30  C.  C.  A.   (1st  and  3d  circuits)   Appendix, 
court  of  claims,  §  2326. 
district  judg^.  outside  judge  to  serve,  §  30. 
duties,  in  suits  for,  §  784. 
judgments,  law  actions,  §§  783,  784. 
levy  for,  §  783. 

money,  kind  payable  in  suits  for  duties,  §  784. 
rate  on  judgments,  §  783. 

INTERLOCUTORY  INJUNCTION, 

national  banks,  none  against,  in  state  courts,  §  1071. 

INTERLOCUTORY  ORDERS, 

time  for  appeal  from,  §  2054. 

INTERNAL  REVENUE, 

statute  of  limitations,  §§  394,  395. 
taxes,  venue,  §  176. 

INTERPRETATION, 
see  Construction. 

INTERROGATORIES  IN  EQUITY  SUITS, 
by  defendant,  §  870. 
by  plaintiff,  §  862. 
equity,  §§  1006,  1011. 
time  for,  §§  862,  870. 

INTERSTATE  COMMERCE, 

commerce  laws,  see  that  heading. 

enforcing  attendance  and  testimony  of  witnesses  under,   §  497. 
testimony,  enforcing  in  cases  under,  §  497. 
witnesses,  enforcing  attendance  and  testimony,  §  497. 
immunity  of,  §  474. 

INTERSTATE  COMMERCE  COMMISSION, 
venue  of  suits  affecting  orders  of,  §  180. 


INDEX  995 

JNTRASTATE, 

^      extradition,  §  2195. 

INVESTIGATIONS, 

oatli,  officers  authorized  to  administer,  §  2241. 

IOWA, 

districts,  terms  and  places  of  holding  court,  §  113. 

IRRELEVANT  MATTER, 

answer  in  equity,  motion  to  strike  from,  §§  935,  955,  978. 

ISSUANCE, 

habeas  corpus  writs,  §  2205. 
venire  for  jury,  law  actions,  §  740. 
writ  of  error  to  Supreme  Court,  §  829. 

ISSUE, 

amount  in  controversy,  how  raised,  §  271. 

answer  in  equity,  §  979. 

depositions  in  equity  after,  §  503. 

diverse  citizenship,  how  raised,  §  249. 

equity  suit,  §§  869,  875,  956,  979. 

fact   in    Supreme   Court,   how    raised,    §   2458. 

Federal  question,  how  raised,  §  226. 

garnishment,  §  638. 

good  faith,  amount  in  controversy,  §  271. 

process  in  equity,  §  911. 

time  for,  in  equity,  §  979. 

ISSUE  IN  EQUITY, 

when  no  counterclaim  or  set-off,  §  869. 
when  counterclaim  or  set-off  pleaded,  §  875. 

ISSUE  OF  LAW, 

equity  suits,  §  956. 


J. 


JOINDER  OF  CAUSES, 

legal  and  equitable,  §  603. 

JOINT  AND  SEVERAL  DEMANDS, 
bill  in  equity,  §  909. 

JOINT  STOCK  COMPANIES, 
diverse  citizenship  of,  §  235. 


096  INDEX 

JUDGES, 

see  also  District  Judge. 

appeal,  powers  and  duties  on,  §  2037. 

circuit,  acting  as  district  judge,  §  28. 

court  of  claims,  §  2301. 

court  of  customs  appeals,  §  2253. 

injunctions,  power  to  issue,  §  1055. 

law  action,  trial   by,   §  589. 

power  to  grant  habeas  corpus  writs,  §  2202. 

state  court,  duty  in  removal  of  causes,  §  292. 

Supreme  Court,  §  2450. 

trial,  law  actions  by,  §  744. 

JUDGMENT, 

see  also  Decree — Equity  Suits,  ch.  38. 

at  law,  see  Judgment  Law  Actions,  §  592,  ch.  27. 

court  of  claims, 

counterclaim,  enforcement,  §  2331. 

effect  of,  §  2338. 

reports  of,  to  Congress  and  Executive  officers,  §  2329. 

set-off,  enforcement,  §•  2331. 
default  law  actions,  §  672. 
equity  suits,  see  Decree. 
fines,  how  collected,  §  2152. 
garnishment,  §  639. 
indictment,  demurrer  to,  §  2125. 
law  actions,  see  Judgment  Law  Actions,  below. 
non  obstante  veredicto,  §  763. 
removable  by  writ  of  error  to  state  court,  §  333. 

JUDGMENT  LAW  ACTIONS,  ch.  27,  §  592. 
allowance  of  interest  on,  §  783. 
amendment  of,   §   789. 
conformity  to  state  laws,  §  782. 
duties,  suits  for,  kind  of  money  payable  in,  §  784. 
general  statement,  §  780. 
indexes,  §  786. 
interest  on,  §§  783,  784. 
lien  of,  §  787. 

not  devested  by  change  in  district,  §  788. 
rate  of  interest,  §  783. 
record,  index  of,  §  785. 
state  practice,  conformity  to,  §  782. 
vacation  of,  by  motion  for  new  trial,  §  790. 

JUDICIAL  DISTRICTS,  see  Districts,  ch.  4. 

JUDICIAL  NOTICE, 

taken  of  the  seal  of  the  Department  of  Commerce  and  Labor,  §  457. 


INDEX  997 

JUDICIAL  OFFICERS, 

see  headings  of  various  courts  and  various  officers  and  next  below, 

ch.  2. 
district  court, 

assistant  district  attorney,  §  40. 

attorney,  admission  of,  §  71. 

bailiff,  §  38. 

circuit  judge  acting  for  district  judge,  §  28. 

clerk,  §§  32,  33. 

commissioners,  §§  41,  42. 

criers,  §  38. 

deputy  clerks,  §  34. 

deputy  marshal,  §  36. 

district  attorney,  §§  32,  39. 

field  deputy  marshals,  §  37. 

judges,  see  District  Judges,  §  21. 

marshals,  §§  32,  35. 

masters  in  chancery,  §  41. 

receivers,  §  41. 

JUDICIAL  POWER  FEDERAL  COURTS, 
constitutional  provisions,  §§  1,  2. 

JUDICIAL  PROCEEDINGS, 

immunity  of  witnesses  in,  see  Immunity,  §  477. 
witnesses,  see  that  heading,  ch.  15. 
immunity  of,  see  Immunity. 

JUDICIAL  RECORDS, 

copies  of  lost  or  destroyed  records  as  evidence,  §  430. 

JURISDICTION, 

see  also  headings  various  courts, 
admiralty,  §  360. 
agriculture,  district  court,  §  191. 
alien  enemies,   district  court,   §   197. 

duties  of  marshal,  §  198. 

aliens  against  Federal  officers,  removal,  §  301. 
amount  in  controversy  how  affects,  ch.  9. 

how  affected  by  aggregating  amounts,  §  268. 
appellate,  circuit  court  of  appeals,  see  that  heading,  ch.  40. 
appellate,  district  court,  see  that  heading,  §§  202,  et  seq. 
appellate  jurisdiction  Supreme  Court,  see  that  heading,  ch.  39. 
appellate  in  general,  §  190. 

Chinese  exclusion  laws,  district  court,  £  202. 

consular  awards,  district  court,  §  204. 

Supreme  Court,  see  that  heading,  ch.  39. 

Yellowstone  National  Park,  district  court,  §  203. 
arbitration  disputes,  common   carriers  and    employees,   §  212. 
arrest  of  seamen  on  application  of  consul,  §  206. 


INDEX 

JUKI  SDICTION— continued, 
assignment,  by,  §  195. 

awards  of  consuls,  power  to  enforce,  §  205. 
bankruptcy,  §  375. 
basis  of,  diverse  citizenship,  ch.  8. 

Federal  question,  ch.  7. 

bias  as  a  ground  for  removal  from  state  court,  §§  286,  295. 
bill  in  equity,  allegations  of  grounds  of,  §  895. 
canals,  to  remove  obstructions,  district  court,  §  200. 
carrier,  employers'  liability  not  removable  to  Federal  court,  §  299. 
certiorari  in  removal  cases,  §  307. 
change  of  citizenship  to  create,  §  246. 
change  of  domicil  after  suit,  §  245. 
Chinese  exclusion  laws,  §  202. 
circuit  court  of  appeals,  see  Appellate  Jurisdiction  of   Circuit  Court  of 

Appeals,  ch.  40. 
civil  rights  cases,  §§  302,  370. 
commerce  laws,  §  365. 

commitment  of  seamen  on  application  of  consul,  §  207. 
concurrent  district  and  state  courts,  §  193. 

generally,  §  4. 

congressional  officers,  removal  of  suits  against,  §  304. 
constitutional  question,  ground  for,  §§  219,  353,  2219. 
consular  awards,  power  to  enforce,  §  205. 
consuls,  foreign,  over  disputes  between  seamen.  §  206. 
copyright  laws,  §  364. 
court  of  claims,  see  subhead  jurisdiction  under  heading  Court  of  Claims, 

§§  2305,  2313. 

court  of  customs  appeals,  §  2259. 
crimes  and  offenses,  §  359. 

crimes  on  Indian  reservations,  South  Dakota,  §  204. 
criminal,  of  district  court,  §  2100. 
customs  duties,  §  199. 
district  court,  appellate,  §§  190,  202,  203,  205. 

concurrent,  §§  190,  193. 

criminal,  §  2100. 

exclusive,  §§  191,  192. 

generally,  §  4,  ch.  6,  §  190. 

original,  §§  4,  190,  194. 

original  and  appellate,  §  190,  ch.  6. 

see  Appellate  Jurisdiction  District  Court, 
discharge  from  arrest,  of  seamen,  §  208. 
diverse  citizenship,  a  ground  of,  ch.  8,  §§  356.  357,  358. 

ground  for  removal,  §§  286,  288. 
duties,  district  court,  §  199. 

employers'  liability  cases  against  common  carriers  not  removable.  §  299. 
exclusion  of  Chinese,  §  202. 

exclusive  in  district  court,  of  state  courts,  §§  191,  192. 
exclusive,  Supreme  Court.  §  2458. 


INDEX  990 

JURISDICTION— continued. 

Federal  courts  in  general,  ch.  1. 

Federal  laws,  question  under,  ground  for,  §§  220,  354. 

Federal  officers,  aliens  against,  removal,  §  301. 

certiorari,  §  307. 

congressional,  removal  of  suits  against,  §  304. 

revenue,  removal  of  suits  against,  §  304. 
Federal  question  as  a  ground  of,  ch.  7. 

original,  §  220. 

for  removal,  §§  221,  286,  287. 

foreign  consuls  over  disputes  between  seamen,  §  206. 
forfeitures,  §  366. 
general  statement,  §  190. 
ground  for,  diverse  citizenship,  ch.  8. 

Federal  question,  ch.  7. 

original,   Federal  question,   §§   220,   354. 

removal  Federal  question,  §  221. 
grounds,  law  action,  allegations  of,  §  601. 
habeas  corpus  writs,  §§  2201,  2203. 
harbors,  to  remove  obstructions,  §  200. 
immigration  laws,  §  378. 
income  tax  law,  §  211. 
Indian  land  allotments,  §  380. 

Indian  reservation,  South  Dakota,  crimes  on,  §  204. 
land  grants,  §§  300,  352. 

laws  of  United  States,  question  under,  ground  of,  §§  220,  354. 
maritime,  §  360. 
monopolies,  §  379. 
national  banks,  §  372. 

obstructions  in  rivers,  harbors,  and  canals,  §  200. 
officers,  aliens  against,  removal,  §  301. 

certiorari,  §  307. 

congressional,  suits  against  removal,  §  304. 

revenue  suits  against,  removal,  §  304. 

suits  by,  §  351. 
original,  Federal  question  ground  for,  ch.  7. 

diverse  citizenship  a  ground  for,  ch.  8. 

of  district  court,  §  24  Judicial  Code,  §  194. 

in  general,  §§  4,  190. 
original  of  Supreme  Court,  §  2458. 
parties,  shifting  to  create,  §  249. 
patent  laws,   §  364. 
penalties,  §  366. 
postal  laws,  §  363. 

prejudice  as  a  ground  for  removal  from  state  court,  §§  286,  295. 
public  lands,  unlawful  inclosure  of,  §  377. 
question  of,  what  is,  §  2002. 

receiver  over  real  property  outside  the  district  of  his  appointment,  §  167. 
reclamation  act,  §  10. 


1000  INDEX 

JURISDICTION— continued, 
removal  of  causes, 
see  also  that  heading, 
class  1,  Federal  question,  §  287. 

2,  diverse  citizenship,   §  288. 

3,  separable  controversy,  §  289. 

4,  bias  or  prejudice,  §  295. 

5,  land  grants  of  different  states,  §  300. 

6,  aliens  against  Federal  officers,  §  301. 

7,  civil  rights  cases,  §  302. 

8,  cases  against  congressional  and  revenue  officers,  §  304. 
revenue  laws,  §§  362,  369. 

revenue  officers,  removal  of  causes  against,  §  304. 

rivers,  obstructions  in.  §  200. 

seamen,  foreign  consuls  over,  §§  206,  207. 

separable  controversy,  removal  of,  §§  286,  289. 

shifting  parties  to  create,  §  247. 

South  Dakota,  Indian  reservation,  crimes  on,  §  204. 

state  court's,  concurrent  with  district,  §  193. 

exclusive  of,  in  district  court,  §§  191,  192. 

after  removal,  §  292. 
summary,  see  heading. 
Summary — Jurisdiction,  etc.,  ch.  12. 
Supreme  Court,  see  Appellate  Jurisdiction  of  the  Supreme  Court,  ch.  39. 

exclusive,  §  2458. 

original,  §  2458. 
territorial,  .see  Venue,  ch.  5. 

see  Places  of  Holding  District  Court,  ch.  4. 

cases  transferred,  §  209. 
trademark  laws,  §  364. 
trade  restraints,  §  379. 
transfer  of  subject-matter  to  create,  §  246. 
transferred  cases  from  territorial  courts,  §  209. 
treaties,  question  under,  ground  for,  §§  220.  355. 
United  States  civil  suits,  by,  §  351. 
United  States,  a  party  in  partition  suit,  §.381. 
United  States  claims  against,  §  376. 
venue  as  affecting  in  case  of  diverse  citizenship,  §  248. 
white  slave  traffic,  §  201. 
Yellowstone  National  Park,  §  203. 

JURORS, 
fees  of, 

grand  jurors,  §  555. 

list  of,  to  be  given  person  indicted  of  treason  or  capital  offense,  §  2141. 

payment,  how  made,  §  556. 

petit  jurors,  §  555. 

JURY, 

challenges,  in  law  actions,  §  743. 


IMDJ2X  '    1001 


JURY — continued. 

charge  to,  in  law  actions,  §§  591,  749. 

conduct  of  trial  in  law  actions,  §  748. 

constitutional  in  law  actions,  twelve  men,  §  733. 

criminal  cases,  §§  2109,  2119. 

drawing  in  law  actions,  §  738. 

excluding,  penalty  under  civil  rights  acts,  §  730. 

exemptions  of. 

under  civil  rights  acts,  §  735. 

after  one  term  of  service  in  a  year,  §  737. 
grand  jury,  see  that  heading,  §§  2115,  2119. 
impaneling  in  law  actions,  §  739. 
instructions  to,  in  law  actions,  §  749. 
petit  juries,  law  actions,  §§  731,  743. 
qualifications  in  law  actions,  734. 

under  civil  rights  acts,  §   735. 

penalty  for  exclusion,  §  736. 
return  of  venire,  §  740. 
special,  §  742. 

Supreme  Court  for  issues  of  fact,  §  2458. 
talesmen  for  petit,  §  741. 
trial  by,  at  law,  §  588. 
trial,  law  actions,  twelve  men,  §  733. 

from  where  drawn,  §  738. 
venire,  issuance  and  return  of,  §  740. 
verdict,  law  actions,  §  591. 

JUSTICE, 

injunctions,  power  to  issue,  §  1055. 

JUSTICES, 

Supreme  Court,  §  2450. 

K. 
KANSAS, 

districts,  terms  and  places  of  holding  court,  §  114. 

KENTUCKY, 

calling  bail  in,  §  2231. 

districts,  terms  and  places  of  holding  court  in,  §  115. 

L. 

LAND  GRANTS. 

amount  in  controversy  in  suits  involving,  §  262. 

removal  of  causes,  class  five,  §  300. 

summary  of  several  jurisdictional  provisions,  §  352. 

LAND  OFFICE, 

records,  certification  of  copies  as  evidence,  §  447. 


1002    "  INDEX 

LAND  PATENTS, 
see  Patents. 

LAW, 

objection  on  point  of,  in  equity,  §  933. 

LAW  ACTION  (Summarized  ch.  18). 

adjournments,  see  Continuances,  ch.  23,  §  586. 

amendment,  see  that  heading,  §  585. 

appellate  procedure  at  law,  ch.  28. 

attachment,  see  that  heading,  §  582,  ch.  20. 

begun  when,  §  651. 

charge  to  jury,  §  591. 

complaint,  §  604,  ch.  19. 

conduct  of  trial,  §  748. 

conformity  to  state  practice,  §  7. 

consolidation,   §   710. 

continuances,  ch.  23. 

default,  §  672. 

defensive  pleading,  see  Defensive  Pleading  Law,  ch.  22. 

depositions,  see  that  heading,  ch.  16,  §  590. 

time  for  taking,  §  501. 
differences  law  and  equity,  §  6. 
discovery,  §  711. 
dismissal,  §  713. 
equitable  defense,  §  675. 
evidence,  see  that  heading,  ch.   14,   §   590. 
execution,  see  that  heading,  §  593,  ch.  27. 
form  of  complaint,  §  604. 

garnishment,  see  that  heading,   §  582,  ch.  20. 
general  statement,  §  580. 

initial  pleading,  see  that  heading,  §  581,  ch.  19. 
judge,  trial  by,   §§  589,   744. 
judgment,  see  that  heading,  §  592,  ch.  27. 
jury,  charge  to,   §  591. 
jury  trial,  §§  588,  731,  743. 
jury  verdict,  §  591. 
method  of  trial,  §  731. 
mode  of  proof  in,  §  745. 
motion  for  new  trial,  §  764. 
new  trial,  §  592. 

motion  for,  §  764. 
nonsuit,  §  713. 

process,  see  that  heading,  §  583,  ch.  21. 
rules  governing,  §§  7,  72. 
summary,  ch.  18. 

Supreme  Court,  action  in,  issues  of  fact,  §  2458. 
trial,  see  Trial  Law  Actions,  ch.  25. 


ISDEX  1003 

LAW  ACTION— continued, 
trial  by  judge,  §  589. 

jury,  §  588. 

verdict,  §§  591,  761,  ch.  26. 
witnesses,  see  that  heading,  ch.  15,  §  590. 

LAW  LIBRARY, 
See  Library. 

LAW  OF  NATIONS, 

habeas  corpus,  §  2212. 

LAW  PROCEDURE, 

see  Law  Actions  and  Procedure. 

LAW  SIDE, 

motion  to  transfer  from  equity,  §  936. 

LAWS  OF  THE  UNITED  STATES, 
.see  also  Federal  Laws. 
Federal  question  arising  under,  §  220. 
summary  of  several  jurisdictional  provisions,  §  354. 

LAWYERS, 

see  Attorneys. 

LEAVE  OF  COURT, 

receivers,  suits  against,  without,  §  1053. 

LETTERS, 

seizure  and  detention  of,  carried  contrary  to  law,  §  2242. 
same,  disposal  of,  §  2243. 

LETTERS  ROGATORY, 

depositions  in  foreign  country,  §  523. 

LIBRARY, 

circuit  court  of  appeals. 

Rule  31  C.  C.  A.   (6th  circuit)   Appendix. 

Rule  33  C.  C.  A.   (7th  circuit)   Appendix. 
LIEN, 

attachment,  §  620. 

decree  equity   suits,   §   1083. 

enforcement  of,  venue,  §  170. 

execution,   not  devested   by   formation   of  new   district,   §   788. 

judgment  law  actions,  §  787. 

not  devested  by  creation  of  new  district,  §  788. 
venue,  §  166. 
vessel  for  repairs,  etc.,  §  2240. 


1004  INDEX 

LIFE  IMPRISONMENT, 

when  substituted  for  death  penalty,  §  2164. 

LIMITATIONS, 

see  Statute  of  Limitations,  ch.   13. 

LITTLE  AND  BROWN'S  EDITION, 
Federal  laws,  evidence,  §  421. 
same,  supplement  Revised  Statutes,   §  422. 

LOCAL  SUIT, 

venue  of,  subject-matter  partly  within  different  districts,   §   165. 
venue  of,  against  defendant  in  different  district,  same  siate,  §  164. 

LOST  OR  DESTROYED  JUDICIAL  RECORDS, 

copies  as  Evidence,   see  Restoration  of  Records,   §   430. 

LOST  RETURNS  AND  OFFICIAL  PAPERS, 
judicial  officers,  copies  as  evidence,  §  434. 

LOST  SUPREME  COURT  RECORD, 
copies  as  evidence,  §  432. 

LOUISIANA, 

district,  terms  and  places  of  holding  court,  §  116. 

M. 
MAINE, 

districts,  terms  and  places  of  holding  court,  §  117. 

MAINTENANCE, 

court  of  claims,  §  2303. 

MAKING  UP  RECORDS, 

circuit  court  of  appeals,  Addenda  Rule  45  C.  C.  A.  Appendix. 

MANDAMUS, 

circuit  court  of  appeals,  Rule  33  C.  C.  A.  (6th  circuit)  Appendix. 

Supreme  Court,  §  2459. 

same,  to  revise  and  correct  proceedings  of  lower  courts,  §  2021. 

MANDATE,  §  2086, 

circuit   court   of   appeals. 

Rule  32  C.  C.  A.  Appendix. 

Rule  29  C.  C.  A.   (6th  circuit)   Appendix. 

Rule  30  C.  C.  A.  (7th  circuit)  Appendix. 

MANNER, 

defensive  pleading  at  law,  §  674.  , 


INDEX  1005 


MARITIME, 

liens  on  vessels  for  repairs,  etc.,  §  2240. 

MARITIME  CASES, 

summary  several  jurisdictional  provisions,   §  360. 

MARRIED  WOMEN, 

Diverse  citizenship  of,  §  238. 

MARSHAL, 

circuit  court  of  appeals,  Rule  6  C.  £!.  A.  Appendix. 

civil  rights  laws,  fees  of,  §  544. 

court  of  customs  appeals,  §  2256. 

district  court,  §   32. 

duties  as  to  alien  enemies,  §  198. 

fees,  district  court,  §  543. 

Supreme  Court,  §  2453. 

MARYLAND, 

districts,  terms  and  places  of  holding  court  in,  §  118. 

MASSACHUSETTS, 

districts,  terms  and  places  of  holding  court   in,   §   119. 

MASTERS  IN  CHANCERY,  ch.  35, 
appointment,  §  1030. 
compensation,  §  1030. 
costs,   §   1034. 
depositions  before,  §  520. 
exceptions  to  report,  §  1034. 
generally,  §  41. 
hearing  of  reference,  §  1032. 
method  of  proceedings,  §  1033. 
notice  of  reference,  §  1032. 
reference  of  exceptional  matters  to,  §  1031. 
regulation   of  proceedings,   §    1033. 
report  of,  §  1034. 

MESSENGERS, 

Supreme  Court,  §  2453. 

METHOD, 

appeals,  taking  of,  circuit  court  of  appeals. 

Addenda  Rule  45  C.  C.  A.  Appendix, 
master  in  chancery  proceedings,  §  1033. 
trial,  law  actions,  §§  731,  732. 

MICHIGAN, 

districts,  terms  and  places  of  holding  court,  §  120. 


1006  INDEX 

MILEAGE, 

amount  of,  for  witnesses,  §§  489,  490. 

double  for   witnesses,   prohibited,    §   490. 

fees  of  witnesses,  see  Fees;  Witnesses,  §§  488,  489,  490,  493,  496. 

witnesses,  amount  and  fees,  §§  488,  489,  490. 

double  prohibited,  §  490. 

generally,  §§  488,  489,  490. 

MINNESOTA, 

districts,  terms  and  places  of  holding  court,  §  121. 

MISCELLANEOUS  MATTERS,  LAW  ACTIONS,  ch.  24. 

MISFEASANCE  DEPUTY  CLERK, 
Supreme  Court,  §  2452. 

MISSISSIPPI, 

districts,  terms,  and  places  of  holding  court,  §  122. 

MISSOURI, 

districts,  terms  and  places  of  holding  court,  §   123. 

MISTAKES, 

decree,  equity  suits,  correction  of,  §  1081. 

MODELS, 

circuit  .court  of  appeals. 

Rule  34  C.  C.  A.  Appendix. 

Rule  32  C.  C.  A.   (3d,  7th,  8th,  and  9th  circuits)   Appendix. 

MODE  OF  PROOF, 

trial,  law  actions,  §  745. 

MODE  OF  RECOVERY, 

costs  and  fees,  §  538. 

MODE  OF  TAKING, 

Depositions  de  bene  esse,  §  509. 
taking  depositions  de  bene  esse,  §  509. 

MODIFICATION, 

temporary   restraining   order,   §    1059. 

MONEY, 

paid  into  court,  §  2238. 

withdrawal  of,  paid  into  court,  §  2239. 

MONOPOLIES, 

summary    of   several   jurisdictional   provisions,   §   379. 


MONTANA, 

districts,  term  and  places  of  holding  court,  §  124. 

MOTION, 

better  statement,  to  obtain  (equity),  §§  934,  954,  978. 
certainty,  to  obtain   (equity),  §§  934,  954,  978. 
circuit  court  of  appeals. 

Rule  21  C.  C.  A.;  Rule  24  C.  C.  A.  (6th  circuit)  Appendix, 
defect  of  parties,  to  dismiss  for    (equity),  §§  956,  957. 
defensive  pleading  in  equity,  see  that  heading,  ch.  33. 
definiteness,  to  obtain,  equity,  §§  934,  954,  978. 
dismiss,  to   (equity). 

decree  pro  confesso,  saves  from,  §  933. 

on  point  of  law,  §  956. 

time   for   answer  after   overruling,   §   867. 
equity  suits,  see  that  heading,  ch.  29. 
grantable  of  course    (equity),  §  953. 
impertinent  matter,  to  remove   (equity),  §  955. 
irrelevant  matter,  to  remove  (equity),  §  955. 
motion  day    (equity),   §  951. 
new  trial    (law),  ch.  26,  §  764. 

execution,   stay   of  pending,  §   793. 
notices    (equity),  §  952. 
notice  of  orders    (equity),   §   958. 

obtaining  better  statement  and  particulars   (equity),  §§  934,  954,  978. 
particulars  to  obtain   (equity),  §§  934,  954,  978. 
produce  books  or  papers,  §  712. 
redundant  matter,  to  strike   (equity),  §§  935,  955. 
removal  of  redundant,  scandalous,  or  impertinent  matter  (equity),  §§  935, 

955. 

scandal,  to  remove    (equity),  §§  935,  955. 

statement,   better  and   particulars    (equity),   §§   934,   954,   978. 
strike  out, 

answer   in   equity,    counterclaim   or   set-off,   §    978. 

counterclaim  or  set-off  in   answer   in   equity,   §   978. 

defense   (equity),  §  873. 

redundant,  scandalous,  or  impertinent  matter   (equity),  §§  935,  955. 

set-off  in  answer  in  equity,  §  978. 
transfer  action  to  law  side,  §  936. 

MOTION  DAY  IN  EQUITY,  §  951. 

N. 

NAME, 

circuit   court  of  appeals. 

Rule  1  C.  C.  A.  Appendix. 

§  1  Rule  2    (6th  circuit)    under  Rule  1  C.  C.  A.  Appendix. 


1008  INDEX 

NATIONAL  BANKS, 

diverse  citizenship  of,  §  237. 

exempt  from  attachment,  §  610. 

Federal  question  not  necessarily  involved  when  same  is  party,  §  218. 

organization  certificates,  copies  as  evidence,  §  439. 

injunction  against  receivership  proceedings,  §  1070. 

injunction,  no  interlocutory  against  in  state  courts,  §  1071. 

receivership,  injunction  against,  §  1070. 

stockholder's  liability  statute  of  limitations,  §  412. 

summary  of  several  jurisdictional  provisions,   §  372. 

NATURALIZATION  LAWS, 

statutes  of  limitations  for  offenses  against,  §  397. 

NAVY, 

records,  copies  as  evidence,  in  suits  against  delinquents,  §  441. 

NAVY  COURT  MARTIAL, 

indictment,  §  2122. 

NEBRASKA, 

districts,  terms  and  places  of  holding  court,  §  125. 

NECESSARIES, 

lien  on  vessel  for,  §  2240. 

NE  EXEAT, 

writ  of,  §  1067. 

NEW  DISTRICT  CREATED, 
venue  of  action,  §  169. 

NEW  HAMPSHIRE, 

districts,  terms  and  places  of  holding  court,  §  127. 

NEW  JERSEY, 

districts,   terms   and   places  of  holding  court,   §    128. 

NEW  MEXICO, 

districts,  terms  and  places  of  holding  court,  §  129. 

NEW  TRIAL, 

court  of  claims,   §  2325. 

execution,  stay  of,  pending  motion,  §  793. 

law  action,  §  592. 

motion  for,  §  764. 

NEW  YORK, 

districts,  terms  and  places  of  holding  court,  §   130. 


INDEX  1009 

NEVADA, 

districts,  terms  and  places  of  holding  court,  §  126. 

NON  LOCAL  SUITS, 

venue  in  district  of  more  than  one  division,  §  163. 
venue  in  state  of  more  than  one  district,  §   162. 

NONSUIT, 

costs  against  informer  on  penal  statute,  §  566. 
costs  for  defendant,  §  565. 
law  action,  §  713. 

NORTH  CAROLINA, 

copies  of  clerk's  new  records  as  evidence,  §  456. 
districts,   terms   and   places   of  holding  court   in,   §   131. 

NORTH  DAKOTA, 

districts,  terms  and  places  of  holding  court,  §  132. 

NOTICE, 

circuit  court  of  appeals. 

Rule  38  C.  C.  A.   (8th  circuit)   Appendix, 
commissioner,  depositions  before,  §  521. 
defensive  pleading  in  equity,   §  951. 
depositions  before  commissioner,  §  521. 

de  bene  esse,  §  507. 

examiner,  §  521. 

master,  §  521. 
equity  suits,  §  952. 

orders  in,  §  958. 

examiner,  depositions  before,  §  521. 
garnishment,  §  637. 

habeas  corpus,  service  on  state  attorney  general.  §  2212. 
injunction  against  enforcement  of  state  laws,  §  1064. 
master  in  chancery,  depositions  before,  §  521. 
orders,  equity,  §  958. 
reference  to  master  in  chancery,  §  1032. 
removal  of  causes,  classes  1,  2,  3,  §  293. 
temporary  restraining  order,  §  1057. 
to  produce  books  or  papers,  §  712. 

NUMBER, 

district  courts  in  the  several  states,  see  Districts,  ch.  4. 
judges  in  the  several  districts,  §  22. 

O. 
OATHS,  §  714. 

court's  power  to  administer,  §  1069. 

officers   authorized   to   administer   in   investigations,   §   2241. 
Montg.— 64. 


1010  INDEX 

OBJECTIONS, 

answer  in  equity,  to,  §  978. 
depositions,  equity  rule  as  to,  §  511. 
evidence,  Rule  12  C.  C.  A.  Appendix. 

OBSTRUCTIONS, 

in  rivers,  harbors  and  canals,  jurisdiction  of  district  court  over,  §  200. 

OBTAINING, 

statement  and  particulars   (equity),  §  954. 

OFFENSES, 

see  also  Crimes  and  Offenses. 

extradition,  none  for  political,  §  2182. 

prosecution,  method  of,  §  2108. 

statutes  of   limitations,   §§  391,  397. 

summary  of  several  jurisdictional  provisions,  §  359. 

venue,  §  174. 

OFFICE, 

suit  to   recover   possession    of,   summary   of   several   jurisdictional   pro- 
visions, §  371. 

OFFICERS, 

aliens,  against  Federal,  removal  of  causes,  §  301. 

authority  to  administer  oaths  in  investigations,  §  2241. 

authorized  to  hold  to  security  of  the  peace  and  good  behavior,  §  2128. 

certiorari,  removal  of  cases  against  congressional  or  revenue,  §  307. 

circuit  court  of  appeals,  Rule  6  C.  C.  A.  Appendix. 

congressional,  removal  of  causes  against,  §  304. 

court  of  claims,  §  2301. 

depositions,  de  benc  esse,  before  whom  taken,  §  506. 

district  court,  ch.  2. 

executions  do  not  issue  against  revenue,  when,  §  792. 

Federal,   see   that  heading. 

question  arises   in  suit  involving  Federal,   §  216. 

habeas  corpus  in  suits  against,  §  307. 

judicial,  see  Judicial  Officers. 

revenue,   see   Revenue   Officers. 

executions  do  not  issue  against,  when,  §  792. 

removal  of  causes  against,  §   304. 
removal  of  causes  against,  §§  301  et  seq. 

suits  by,  summary  of  several  jurisdictional  provisions,  §  351. 
witnesses,  not  disqualified  as  in  suits  for  fines,  penalties,  or  forfeitures, 

§  473. 
witness  fees,  court  officer  not  entitled  to,  §  549. 

OFFICIAL  PAPERS, 

copies  of  lost  or  destroyed,  as  evidence,  §  434. 


INDEX  1011 


OHIO, 

districts,   terms   and   places  of   holding   court   in,   §    133. 

OKLAHOMA, 

districts,  terms  and  places  of  holding  court,  §  134. 

OPINIONS, 

circuit  court  of  appeals. 

Rule  28  C.  C.  A.  Appendix. 

Rule  25  C.  C.  A.    (6th  circuit)    Appendix. 

Rule  26  C.  C.  A.   (3d  and  7th  circuits)    Appendix. 

ORAL  ARGUMENTS, 

see  Arguments. 

ORDER, 

see  also  Decree,  Equity  Suits,  ch.  38. 

defensive  pleading  at  law,  §  671. 

enforcement  of,  differences  law  and  equity,  §  6. 

interlocutory,  time  for  appeal  from,  §  2024. 

notice  of,  in  equity,  §  958. 

preliminary    injunction,    see    Restraining    Order. 

OREGON, 

districts,  terms  and  places  of  holding  court,  §  135. 

ORGANIZATION, 

circuit  court  of  appeals,  ch.  48. 

court  of  claims,  §§  2300,  2301. 

court  of  customs  appeals,  §  2252. 

district  court,  chs.  2  and  3. 

general  statement  as  to  district  court,  §  60. 

Supreme  Court,  ch.  49. 

ORIGINAL  JURISDICTION, 
see  Jurisdiction, 
district  court,  §  197. 
diverse  citizenship,  ch.  8. 
Federal  question  as  a  ground  of,  §  220. 
removal,  ch.  10. 
Supreme  Court,  §  2458. 


P. 


PAMPHLET  COPIES, 

of  statutes  and  bound  copies  of  acts,  aa  evidence,  §  428. 


1012  INDEX 

PAPERS, 


'ERS, 

deposition  under  commission,  production  of,  §  517. 

motion  and  notice  to  produce,  §  712. 

production  of,  on  deposition  under  commission,  §  517. 


PARDON, 

President's  power,  §  2167. 

PAROLE, 

of  prisoners,  §  2168. 

PART, 

of  defendants  not  found,  venue,  §  173. 

PARTICULARS, 

motion  for,  equity,  §  954. 

PARTIES, 

allegations  as  to,  in  bill  in  equity,  §§  894,  897. 
ambassador  as,  in  Supreme  Court,  §  2458. 
appeal,   on,   §   2051. 

banks,  national,  diverse  citizenship  of,  §  237. 
bill  in  equity, 

allegations  of  residence  and  citizenship  of,  §§  894,  897.  908. 
citizens  District  of  Columbia  not  included  in  term  "diverse  citizenship," 

§   232. 

citizens  as,  in  Supreme  Court,  §  2458. 
consul  as,  in  Supreme  Court,  §  2458. 
continuance  for  death  of,  §  691. 
corporation,  diverse  citizenship  of,  §  234. 
defect  in,  bill  in  equity,  §§  905,  957. 
District  of  Columbia  not  a  citizen,  §  232. 
diverse  citizenship,  §  247. 

domestics  of  ambassadors,  etc.,  as.  in  Supreme  Court,  §  2458. 
Federal  officers  as,  raises  a  Federal  question,   §  216. 
not  ready. 

Rule  22  C.  C.  A.  Appendix. 

party  U.  S.  in  partition  suits,  summary  of  several,  §  381. 
personal    representatives,    §    239. 

process  in  equity  for  or  against  persons  not  parties.  §  915. 
proper  in  bill,  §  897. 

public  minister  as,  in  Supreme  Court,  §  2458. 
residence  of,  allegations,  §  894. 

servants  of  ambassadors,  etc.,  as  in  Supreme  Court,  §  2458. 
shifting  to   create  diverse  citizenship,   §   247. 
state  as,  in  Supreme  Court.  §  2458. 

territorial  citizens  not  included  in  term  "diverse  citizenship,"  §  232. 
vice  consul  as,  in  Supreme  Court,  §  2458. 
writ  of   error,   §   821. 


INDEX  1013 

PARTITION  SUITS, 

United  States  a  party,  summary  of  several  jurisdictional  provisions,  §  381. 

PARTNERSHIP, 

diverse  citizenship  of,  §  236. 

PATENT  CASES, 

attendance  of  witnesses,  enforcing,  §  492. 
claim  for  unlicensed  use  by  government,   §   2313. 
costs  in  infringement  cases,  §  568. 
copies  foreign  letters  as  evidence,  §  451. 

enforcing  attendance  and  testimony  of  witnesses  in  contested  cases,  §  402. 
expert  witnesses,   §§   1001,   1005. 
statute  of  limitations,  infringements,  §  410. 
summary  several  jurisdictional   provisions,   §   364. 
testimony,  enforcing  in  contested  cases,  §  492. 
venue,  infringement  suits,  §  171. 

witnesses,  enforcing  attendance  and  testimony  of  witnesses   in  contested 
cases,  §  492. 

PATENT  OFFICE, 

records,  letters,  patents,  etc.,  copies  as  evidence,  §  450. 

PATENTS,  INDIANS, 

statutes  of  limitations,  §  407. 

PATENTS,  LAND, 

statutes  of  limitations  to  vacate,  §  405. 

PATENTS,  RAILWAY, 

statute  of  limitations,  §  406. 

PATENTS  WAGON  ROAD, 

statute  of  limitations,  §  406. 

PAYMENT, 

amount  in  controversy,  effect  on.  §  267. 
money    into   court,    §    2238. 
same,    withdrawal   of,    §    223't. 

PEACE, 

officers,  authorized  to  hold  to  security  of,  §  2123. 

PENAL  LAWS, 

see  Criminal  Procedure,  ch.  42. 

PENAL  STATUTE, 

costs  against  informer  on  nonsuit  or  discontinuance.  §  566. 
costs   of   defendant,   §   565. 


1014  INDEX 

PENALTIES, 

customs  revenue  laws,  statutes  of  limitations,  §  399. 

Federal  laws,  statutes  of  limitations,  §  398. 

special  bail   in  suit  for,   §  2228. 

summary  of  several  jurisdictional  provisions,  §  36C. 

venue,  §  175. 

witnesses,  officers  and  informers  not  disqualified  in  suits  for,  §  473. 

PENALTY, 

excluding  jurors  contrary  to  civil  rights  acts,  §  736. 

PENNSYLVANIA, 

districts,  terms  and  places  of  holding  court,  §  136. 

PEREMPTORY  CHALLENGES, 
criminal  cases,  §  2144. 
excessive,  in  criminal  cases  disregarded,  §  2145. 

PERJURY, 

indictment  for,  §  2120. 

subornation  of,  indictment  for,  §  2121. 

witness,  does  not  disqualify,  §  471. 

PERPETUATION  OF  TESTIMONY, 

depositions  under  state  laws,  when  admissible,  §  518. 

PERSONAL  PROPERTY, 

execution,  appraisal  on,  §  804. 

PERSONAL  REPRESENTATIVE, 
diverse  citizenship  of,  §  239. 

PERSONS, 

not  parties,  process  in  equity  in  behalf  ot-  against,  §  915. 
producing,  habeas  corpus,  §  2208. 

PETITION, 

see  also  Forms,  subheading  Petitions. 

court  of  claims,  §  2316. 

same,  insufficient,  §  2318. 

to  revise  in  bankruptcy,  circuit  court  of  appeals. 

Rule  34  C.  C.  A.  (6th  circuit)  Appendix. 

Rule  36  C.  C.  A.   (1st,  4th,  and  8th  circuits)    Appendix. 

Rule   37    C.   C.   A.    (8th   circuit)    Appendix. 

Rule  38  C.  C.  A.   (2d  and  4th  circuits)   Appendix. 

PETIT  JURIES, 
see  also  Juries, 
talesmen  for,  §  741. 


INDEX  1015 

PHILIPPINE  ISLANDS, 

appeal  and  error  to  supreme  court,   §  2016. 
procedure  on  appeal  from  supreme  court  of,  §  2078. 

PHYSICAL  EXHIBITS, 
circuit  court  of  appeals. 

Rule  30  C.  C.  A.    (6th  circuit)    Appendix. 

PILLORY, 

abolished,  §  2166. 

PLACES, 

criminal  law  of  the  United  States  applicable,  §  2101. 

executions  run  where,  §  795. 

execution,  sale  of  real  estate,  §  800. 

for  holding  district  court  in  the  various  states,  ch.  4. 

see  also  Districts, 
jury,  from  where  drawn,  §  738. 

PLEA, 

not  guilty,  standing  mute,  §  2140. 

PLEADING, 

see  also  Procedure  and  under  headings  of  various  kinds  of  pleadings, 
amendment,  see  that  heading. 

answer  in  equity,  §  976. 

bill  in  equity,  §  904. 

defensive,  at  law,  §  676. 
amount  in  controversy,  §  265. 

answer  at  law,  see  Defensive  Pleading  at  Law,  ch.  22. 
answer  in  equity,  §  973. 

is  not  evidence,  §  971. 
bill  in  equity,  see  that  heading,  §  892,  ch.  30. 

differences  Federal  and  state,  §  891. 
caption  of  equity  bill,  §   893. 
cause  of  action,  equity,  §  896. 

certainty,  motion  for  in  equity,  §§  934,  954,  978. 
citizenship  of  parties,  equity,  §  894. 
complaint  (see  Initial  Pleading)   at  law,  ch.  19. 
complaint,  equity,  differences  Federal  and  state,   §  891. 
conformity,  at  law  to  state  law,  ch.  18. 
conformity,  defensive  at  law  to  state  law,  ch.  22. 
contents  bill  in  equity,  §  892. 
counterclaim,  equity,  see  that  heading,  §  980. 
decree  pro  confesso,  ch.  32. 

to  save  from,  §  932. 

equity,  ch.  38. 
default  at  law,  §  672. 
default  in  equity,  to  save  from,  §  932. 


1016  INDEX 

PLEADING— continued. 

defense,  answer  in  equity,  ch.  34. 

defensive  at  law,  ch.  22. 

defensive  in  equity,  time  for,  §  930. 

definite,  motion  to  make,  equity,  §§  934,  954,  978. 

differences   between   law   and   equity,   §   6. 

bill  in  equity,  Federal  and  state,  §  891. 

complaint  at  law,  Federal  and  state,  §  600. 
differences,   Federal   and   state  practice,   §   10. 
discovery  at   law,   §   711. 

answer  in  equity,  §  975. 

bill  in  equity,  §  900. 
effect  of  answer  in  equity,  §§  970,  971. 

counterclaim  or  set-off  in  equity,   §§  980,   981. 

failure  to  plead  counterclaim  or  set-off,  §  983. 
equity  suit   (see  that  heading), 
equitable  defenses  law  actions,  §  675. 
evidence,  answer  in  equity  is  not,  §  971. 
Federal  question,  where  must  appear,  §§  224,  225. 
forms,   see  that  heading, 
general  statement. 

answer  in  equity,  §  970. 

bill  in  equity,  §  890. 

counterclaim  or  set-off  in  equity,  §  980. 
grounds  of  jurisdiction,  allegations  of,  in  bill,  §  895. 

see  also  heading  Grounds  of  Jurisdiction, 
impertinent  matter  in  answer  in  equity,  motion  to  strike,   §§  935,  955, 

978. 

independent  suit  in   equity   in  counterclaim,  §  981. 
initial,  see  Initial  Pleading. 

pleading  at  law    (ch.  19),   in  equity    (ch.  30). 

Federal  question  must  show  in,  §§  224,  225. 
irrelevant  matter,  motion  to  strike  in  equity,  §§  935,  955,  978. 
issue  in  equity,  see  heading  Issue,  §  979. 
jurisdiction,  ground  of,  see  heading  Jurisdiction,  §  895. 
manner  of  defensive,  at  law,  §  674. 
motions,   see  that  heading, 
objections  to  answer  in  equity,  §  978. 
order  defensive  at  law,  §  671. 
parties,    see    that    heading. 

allegations  as  to  in  bill  in  equity,  §§  894,  897. 

citizenship,  allegation  of,  in  bill,  §  894. 

proper,  allegation  of,  in  bill,  §  897. 

residence,  allegation  of,  in  bill,  894. 
prayer  of  bill  in  equity,  §  898. 

proper  parties,  allegations  in  bill  in  equity,  §  897. 
redundant  matter,  motion  to  strike  (equity),  §§  935,  955,  978. 
removal   of  causes,   ch.    10. 

reply  to  counterclaim  or  set-off  in  equity,  §  979. 
residence  of  parties,  allegation  of,  in  bill,  §  894. 


INDEX  1017 


PLEADING— continued. 

scandal,  motion  to  strike   (equity),  §§  935,  955,  978. 
scope  defensive,  at  law,  §  674. 
set-off,   see  Counterclaim   in  Equity,   §§  980,   981. 
state   practice. 

bill   in   equity,   differences   Federal   and   state,   §   891. 

complaint  at  law,  differences  Federal  and  state,  §  600. 

differences,  Federal  and  state  practice,  §  10. 
statement  of  cause  of  action   in  bill  in  equity,   §   896. 
sufficiency  defensive  at  law,  §  674. 
supplemental  answer  in  equity,  §  979. 
time  for  answer  in  equity,   (see  heading  Time),  §  972. 

counterclaim  in  equity,  §  972. 

defensive,  at  law,  §  671. 

reply  to  counterclaim  in  equity,  §  979. 

set-off  in  equity,  §  972. 


POLITICAL  OFFENSE, 

extradition  not  allowed,  §  2182. 

POLYGAMY, 

challenges  in  prosecution  for,  §  2146. 

PORTO  RICO, 

appeal  and  error  to  supreme  court,  §  2013. 

procedure,  appeal  from  supreme  and  district  courts  of,  §  2077. 

POSSESSORY  ACTION, 

mining  titles,  government  title  does  not  affect,  §  460. 

POSTAL  LAWS, 

continuance  in  suits  under,  §  694. 

credits  in  suits,  §  2235. 

interest  in  suits,  §  2236. 

letters,  seizure  of,  §  2242. 

same,  disposition  of  seizures,  §  2243. 

summary  several  jurisdictional  provisions,  §  363. 

POSTAL  SUITS, 

attachment,  §§  625,  633. 
garnishment,  §  631. 

POSTOFFICE, 

copies  of  Department  demand  on  postmasters  as  evidence.  §  446. 
records,  copies  as  evidence,  §  445. 

PRACTICE, 

s»  c  Procedure. 

admission  to  district  court,  §  71. 

circuit  court  of  appeals,  Rule  8  C.  C.  A.  Appendix. 


1018  INDEX 

PRACTICE— continued. 

court  of  claims,  disqualification  for,  §  2302. 

rules  of,  §  2315. 
differences  in  law  and  equity,  §  6. 

Federal  and  state,  §  10. 
equity,  summary,  ch.  29. 
law  summary,  ch.  18. 

PRAYER, 

bill  in  equity,  §  898. 

PREC1PE, 

process  in  equity,  for,  §  912. 
subpoena  in  equity,  §  861. 

PREJUDICE, 

district  judge,  designation  of  another  judge  of  affidavit  filed,  §  31. 
removal  of  causes  for,  §§  286,  295. 

PRELIMINARY  INJUNCTIONS, 

see  Restraining  Order  and  Injunctions. 

PREPARATION, 

record  on  appeal,  §  2067. 
record  on  error,  §  837. 

PRESERVATION  OF  LIEN, 

upon  transfer  or  creation  of  new  district,  venue,  §  170. 

PRINTED, 

and  bound  copies  of  acts  as  evidence,  §  429. 

copies  of  patent,  specifications  and  drawings  as  evidence,  §  452. 

PRINTER'S  FEES,  §  557. 
folio  defined,  §  558. 

PRINTING, 

appeal   record,  circuit  court  of  appeals,   §  2069. 

Rule   19  C.  C.   A.    (6th  circuit)    Appendix. 

Rule  23  C.  C.  A.  Appendix. 

Rule  40  C.  C.  A.    (8th  circuit)   Appendix. 
Addenda  Rule  45  C.  C.  A.  Supreme  Court,  §  2070. 

PRIORITIES, 

attachments,  §  621. 

revenue  cases,  §  2222. 

state  a  party,  cases  where,  §  2222. 


INDEX  1019 

PRISONER, 

see  that  subhead  under  heading  Criminal  Procedure, 
custody. 

circuit  court  of  appeals,  Rule  33  C.  C.  A.  Appendix. 
Rule  31  C.  C.  A.   (3d  and  7th  circuits)   Appendix. 
Rule  32  C.  C.  A.   (6th  circuit)   Appendix, 
extradition,  see  that  heading,  ch.  43. 

PRIVILEGE, 

removal  by  writ  of  error,  state  court,  decision  against,  §  337. 

PRIZE  CASES, 

appeals  to  Supreme  Court,  §  2004. 
witness  fees,  how  paid,  §  554. 

PROCEDENDO, 

circuit  court  of  appeals. 

Rule  44  C.  C.  A.  (8th  circuit)  Appendix. 

PROCEDURE, 

after  removal,  §§  294,  312. 

aliens,  suits  against  Federal  officers,  on  removal,  §  301. 

appeal,   see  that  heading,  ch.   41. 

appellate,  see  that  heading  subhead  Procedure,  ch.  28,  §  42. 

appellate  court  after  transcript  filed,  §§  843,  2083. 

bias,  on  removal  for,  §§  295,  298. 

Civil  Rights  Cases,  on  removal  of,  §§  302,  303. 

congressional  officers,  on  removal  of  suits  against,  §§  306,  307. 

custom  law  seizure  cases,  §  2226. 

differences   between    law   and   equity,    §    6. 

Federal  and  state,  §  10. 

diverse  citizenship,   removal   of   causes,   §§   2!)0   et   seq. 
equity,  see  Equity  Suit,  ch.  29. 
Federal  officers,  aliens  against,  removal,  §  301. 

congressional,  removal  of  suits  against,   §§   305   et  seq. 

revenue,  removal  of  suits  against,  §§  305  et  seq. 
Federal  question,  removal  of  causes,  §§   290  et  seq. 
injunction  on  distress  warrant  against  officer  for  failure  to  account  for 

public  money,  §§  1073,  1074. 
land  grant  cases  on  removal,  §  300. 
law,  see  Law  Actions,  ch.  18. 
officers,  aliens  against,   removal,   §  301. 

congressional,  removal  of  suits  against,  §§  305  et  seq 

revenue,  removal  of  suits  against,  §§  305  et  seq. 
prejudice,  on  removal  for,  §§  295  et  seq. 
remanding  cases  removed,  see  Remand, 
removal  of  causes,  ch.  10. 

removal  by  writ  of  error  to  state  court,  ch.   11,   §   339. 
revenue  officers,  removal  of  suits  against,  §§  305  et  seq. 


1020  INDEX 

PROCEDURE— continued. 

separable  controversy,  removal  of,  §§  290  et  seq. 

state  court,  removal  by  writ  of  error  from,  §  339. 

temporary  restraining  order  when  granted  without  notice,  §  1058. 

writ  of  error,  see  that  heading. 

district  court  to  circuit  court  of  appeals,  §  826. 

forma  pauperis,  §  835. 

state  court,  to,  §  339. 

summary,  §  839. 

territories  to,  §  841. 

PROCEEDINGS, 

see  Procedure  and  Pleading, 
equity,   summary,  ch.   29. 
forma  pauperis. 

C.  C.  A.  Rule  17    (6th  circuit)    Appendix, 
law  summary,  ch.   18. 

PROCESS, 

alias  subpoena,  equity,  §  914. 
amendment  at  law,  §  653. 
circuit  court  of  appeals. 

Rule  9  C.  C.  A.  Appendix. 

Rule  8,  6th  circuit  under  Rule  9  C.  C.  A.  Appendix, 
equity  suits,  ch.  31. 

for  or  against  persons  not  parties,  §  915. 
form,  equity,  §§  911,  919. 

of  return,  equity,   §§   918,  919. 

law   conform   to   state   laws,   exceptions,   §   652. 
forma  paupei'is  suits,  §  658. 
general  statement,  law   actions,   §   650. 
issuance  of  equity,  §  911. 
law  action,  §  583,  ch.  21. 
mesne,  in  equity,  the  subpoena,   §  910. 
manner  of  service,  §§  655,  917. 
precipe  for,  in  equity,  §  912. 
publication  of,  §  656. 
return  of,  in  equity,  §  911. 

form,  §§  918,  919. 

time  for,  §§  864,  911. 
service  of,  by  whom  made,  §§  654,  916. 

by  publication,  §  656. 

manner  of,  §§  655,  917. 

time  for,  §§  864,  911. 
special  appearance  to  quash,  §  657. 
subpoena  is,  §  910. 

summons  in  equity  is  the  subpoena,  §  910. 
time  for  return,  §§  864,  911. 
witnesses  in  criminal  cases,   §  479. 

see  also  Subpoena. 


INDEX  1021 

PROCTORS, 

admission  to  Supreme  Court,  §  2455. 
fees  of,  §  539. 

PRODUCTION, 

books  and  papers  under  customs,   revenue  laws,   §  712. 

books,  documents  and  papers,  depositions  under  commission,  §  517. 

person,  habeas  corpus,  §  2208. 

PROHIBITION, 

circuit  court  of  appeals. 

Rules  33  C.  C.  A.   (6th  circuit),  Appendix. 
Supreme  Court,  writ  of,  §  2459. 

PROOF, 

differences  in  law  and  equity,  §  6. 
infringement  suits,  §  1012. 
mode,   in   equity,   §   1002. 
in  law  actions,  §  745. 
records,  on  removal  when  copies  refused  by  state  court  'clerk,  §  308. 

PROPER  PARTIES, 
see  also  Parties, 
bill  in  equity,  §  897. 

PROPERTY, 

attachment  of,  §  615. 

condemnation  of  insurrectionary,  venue,  §  177. 

PROSECUTION, 

by  district  attorney,  §  2139. 

criminal  offenses,  method  of,  §  2108. 

failure  to  file  rebate  tariffs,  venue  of  action,  §  179. 

PROVISIONAL, 
depositions. 

see  Depositions  de  Bene  Esse. 
remedies. 

attachment,  ch.  20. 

garnishment,  ch.  20. 

preserved  on  removal  of  causes  from  state  to  Federal  courts,  §  311. 

PUBLICATION, 

depositions  in  equity  on  filing,  §  522. 

execution,  sale  of  real  estate,  §  801. 

interstate  commerce  reports  and  decisions  as  evidence,  §  461. 

summons,  §  656. 


1022  INDEX 

PUBLIC  LANDS, 

unlawful  inclosure  of,  summary  of  several  jurisdictional  provisions,  §  377. 

PUBLIC  MINISTERS, 

Supreme  Court,  suits  against,  in,  §  2458. 

PUBLIC  MONEY, 

continuance  in  suit  against  delinquent,  §  683. 

Q. 

QUALIFICATIONS, 

jury,  trial  laws  actions,  §  734. 

civil  rights  acts,  §  735. 

penalty  for  exclusion,  §  736. 
receivers,  §  1051. 

QUESTION, 

arising  under  the  Constitution,  §§  219,  353,  2219. 
Federal  laws,  §§  220,  354. 
treaties,  §§  220,  355. 
of  jurisdiction,  what  is,  §  2002. 

QUORUM, 

circuit  court  of  appeals,  Rule  4,  C.  C.  A.  Appendix. 

court  of  claims,  §  2304. 

court  of  customs  appeals,  §  2253. 

Supreme  Court,  §  2450. 

R. 
RAILWAY, 

companies,  claims  for  transportation  furnished  the  government,  §  2312. 
patents,  statute  of  limitations,  §  406. 

RATE  OF  INTEREST, 
see  Interest. 

REAL  PROPERTY, 

receiver's  jurisdiction  over,  when  outside  of  district  within  circuit,  venue, 

§   167. 
sale  of,  see  Executions. 

REBATE, 

tariffs  giving,  prosecution  for  failure  to  file,  venue,  §  179. 

RECEIVERS, 

generally,  §  41. 

jurisdiction  over  real  property  outside  district  in  circuit,  venue,  §  167. 

manage  properties  according  to  state  laws,   §   1052. 


INDEX  1023 

RECEIVERS— continued. 

qualifications  of,   §   1051. 

suits  against,  without  leave  of  court,  §  1053. 

RECEIVERSHIP, 

appeals  from  district  court  to  circuit  court  of  appeals,  §  2032. 
injunction  against  proceedings  against  national  banks,  §  1070. 

RECLAMATION  ACT, 

jurisdiction  district  court,  §  210. 

RECOGNIZANCE, 

criminal  cases,  witnesses,  §  480. 

in  Vermont,  §  481. 

on  behalf  of  United  States  district  attorney,   §  482. 
forfeiture  of,  §  2134. 
remittance  of,  §  2134. 
witnesses  in  criminal  cases,  §  480. 

in  Vermont,  §  480. 

on  behalf  of  United  States  district  attorney,   §  482. 

RECORD  ON  APPEAL, 

circuit  court  of  appeals. 

Rule  21  C.  C.  A.   (6th  circuit)   Appendix, 
copy  of  C.  C.  A.  Rule  27,  C.  C.  A.  Appendix, 
diminution  of,  §  2085. 

district  to  Supreme  Court,  one  record  sufficient,  §  2071. 
instructions  as  to  making  up  for  circuit  court  of  appeals. 

Addenda  Rule  45  C.  C.  A.  Appendix, 
one  sufficient  where  both  parties  appeal,  §  2071. 
printing  of   (see  that  heading)    on  appeal  to  Supreme  Court,  §  2070. 

of  C.  C.  A.  §  2069. 

reduction  and  preparation  of,  §  2067. 
reduction  and  preparation  of,  under  equity  rules,  §  2068. 
translations. 

Rule  15,  C.  C.  A.  Appendix. 

Rule  16,  3d  circuit  under  Rule  15  C.  C.  A.  Appendix, 
writ  of  error,   §   836. 

RECORDS, 

copies  as  evidence. 

clerk's  new,  §§  455,  456. 

Commissioner  of  Indian  affairs,  §  449. 

Comptroller  of  Currency,  §  438. 

Department  of  Interior,  §  444. 

Executive  Departments,  §  436. 

foreign,  filed  in  Departments  relating  to  land  title.  §  426. 

lost  or  destroyed,  §§  430,  435. 

Patent  Office,  §§  450,  453. 


1024  INDEX 


RECORDS— continued. 
Copies  as  evidence, 

Postoffice,   §§  445,  446. 

Navy,  §  441. 

Solicitor  of  Treasury,  §  437. 

state,  §  425. 

Supreme  Court,  lost  or  destroyed,  §  432. 

Treasury  Department,  §§  441,  443. 

war,  in  suits  against  delinquents,  §  441. 
district  court,  place  for  keeping,  §  68. 

transfer  of  territorial,   §   69. 
judgment  law  actions,  §  785. 

index  of,  §  786. 

restoration   of,   see   Restoration   of   Records,   §§   431-435. 
return  of,  removal  of  causes,  §  309. 

REDUCTION, 

record  on  appeal,  §  2067. 
record  on  error,  §  837. 

REDUNDANT  MATTER, 

motion  to  strike,  equity,  §§  935,  955. 

REFERENCE, 

masters  in  chancery, 
costs,  §  1034. 
exceptions,  §  1034. 
hearing,  §  1032. 
notice,  §  1032. 
report,  §  1034. 

REGULATION, 

master  in  chancery  proceedings,  §  1033. 

REGULATION  OF  PROCEEDINGS  IN  EQUITY,  §  880. 

REHEARING, 

circuit  court  of  appeals. 

Rule  27  C.   C.  A.  3d,  7th,  and  8th  circuits)    Appendix. 

Rule  28  C.  C.  A.  (6th  circuit)  Appendix. 

Rule  29  C.  C.  A.    (1st  and  2d  circuits)    Appendix. 

REINSTATEMENT  ON  EQUITY  CALENDAR,  §  879. 

RELATIONSHIP, 

district  judge,  outside  judge  to  serve,  §  30. 

RELIEF  GRANTED, 

differences  law  and  equity,  §  6. 


INDEX  1025 

REMANDING, 

cases  removed  from  state  court,  §  296. 

bias,  failure  to  show,  §  297. 

diverse  citizenship,  class  two,  §  298. 

Federal  question,  class  one,  §  298. 

fraud  for,  §  310. 

generally,  §  310. 

improperly  removed,  §  310. 

prejudice,  failure  to  show,  §  297. 

separable  controversy  in  cases  removed  for  bias  or  prejudice,  §  296. 

REMEDY, 

attachment,  see  that  heading,  §  613. 

discovery,  see  that  heading. 

differences  law  and  equity,  §  6. 

equity  suit,  see  that  heading,  ch.  29. 

garnishment,  ch.  20. 

law  action,  see  that  heading,  ch.  18. 

removal  of  causes,  provisional,  in  state  court  preserved,  §  311. 

REMOVAL  BY  WRIT  OF  ERROR  TO  STATE  COURT,  ch.  11. 
see  also  Removal  of  Causes,  ch.  10. 

appellate  method  of  review  state  court  decision,   §  332. 
authority  Federal,  decision  against  Federal,  §  335. 

decision   against   right,   title,   privilege  or   immunity   claimed  under, 

§  337. 
commission,  removal  decision  against  right,  title,  privilege,  or  immunity 

claimed  under  Federal,  §  337. 
Constitution,   decision   against    Federal,    §    335. 

decision   against   right,  title,   privilege,   or   immunity   claimed  under 

Federal,  §  337. 
decree  removable,  §  333. 
general  statement,  §  330. 

immunity,  Federal,  state  decision  against,  §  337. 
judgments  removable,  §  333. 
privilege,  Federal,  state  decision  against,  §  337. 
procedure  on,  §  339. 
reviewable  cases,  §  334. 

right,  Federal,  state  decision  against,  §  337. 
state  statutes  claimed  repugnant  to  Federal  authority,  state  decision  in 

favor  of,  §  336. 

statute,  Federal,  state  decision  against,  §   337. 
title,  Federal,  state  decision  against,  §  337. 
treaty,   Federal,   state  decision   against  validity,   §  335. 

stdte  decision   against   right,   title,   privilege,   or    immunity   claimed 
under,  §  337. 

Montg. — 65. 


1026  INDEX 

REMOVAL  OF  CAUSES,  ch.  10. 

see  also  Removal  by  Writ  of  Error  to  State  Court,  ch.  11. 
aliens,  suits  against  Federal  officers,  class  six,  §  301. 

same,  habeas  corpus  in,  §  303. 
bias  of  state  court,  class  four,  §§  286,  295. 
bond,  diverse  citizenship,  §  291. 

Federal  question,  §  291. 

in  state  court  preserved,  §  311. 

separable  controversy,  §  291. 

carrier,  employers'  liability  cases  not  removable,  §  299. 
certiorari,  congressional  officers,  cases  against,  §  307. 

revenue  officers,  cases  against,  §  307. 
civil  rights  cases,  class  seven,  §  302. 

habeas  corpus,  §  303. 

remanding,  §  310. 

common  carriers,  employers'  liability  cases  not  removable,  §  299. 
congressional  officers,  certiorari  in  cases  removed  against,  §  307. 

officers,  class  eight,  §§  304  et  seq. 

habeas  corpus  in  cases  removed  against,  §  307. 
constitutional  question  a  ground  for,  §§  221,  353. 
dismissal  of  suits  fraudulently  or  improperly  removed,  §  310. 
diverse  citizenship,  bond,  fl  291. 

class  two,  §  288. 

remanding  or  dismissing  cases  fraudulently  or  improperly  removed, 
§  310. 

procedure,   §§  290  et  seq. 

duty  of  state  court  on  removal  of  causes,  §  292. 
employers'  liability,  common  carrier  cases  not  removable,  §  299. 
Federal  officers,  aliens  against,  §  301. 

certiorari,  §  307. 

congressional,  against,  §  304. 

habeas  corpus,  §§  303.  307. 

revenue  against,   §   304. 
Federal  question,  bond,  §  291. 

class  one,  §  287. 

as  a  ground,  §  221. 

dismissing  cases   improperly   or   fraudulently   removed,   §   310. 

procedure,  §§  290  et  seq. 

fraud,  ground  for  dismissal  or  remanding,  §  310. 
general   statement,   §   285. 
grounds,  §  285. 
habeas  corpus,  civil  rights  cases,  §  303. 

congressional  officers,  §  307. 

revenue  officers,   §   307. 
jurisdiction,  see  that  heading. 

class  one,  Federal  question,   §§  286,  287. 

class  two,  diverse  citizenship,  §§  286,  288. 

class  three,   separable  controversy,   §§   286,  295. 

class  four,  bias  or  prejudice,  §§  286,  295. 


INDEX  10 27 


REMOVAL  OF  CAUSES— continued. 

jurisdiction — class  five,  land  grants,  §  300. 

class  six,  aliens  against  Federal  officers,  §  301. 

class  seven,   Civil  Rights   Cases,   §   302. 

class  eight,   against  congressional  or   revenue   officers,   §   304. 
judge  of  state  court,  duty  on  removal  of  case,  §  292. 
land  grant  cases,  class  five,  §  300. 

laws  of  United  States,  question  arising  under,  ground  for,  §§  221,  354. 
notice,  removal  of  causes,  classes  1,  2,  3,  §  293. 
officers,  aliens  against  Federal,  §  301. 

certiorari  in  cases  against,  §  307. 

congressional,  against,  §  304. 

habeas  corpus,  §  307. 

revenue  against,  §  304. 
pleading,  see  Procedure  below. 

prejudice,  in  state  court,  class  four,  §§  286,   295. 
procedure,  after  removal  in  classes,  1,  2,  3,  §  294. 

generally,  §  312. 

aliens  against  officers,  §  301. 

bias  of  state  court,  §§  295  et  seq. 

Civil  Rights  Cases,  §§  302,  303. 

congressional  officers.  §§  306,  307. 
procedure,  diverse  citizenship,  §§  290  et  seq. 

Federal  officers,  §§  301  et  seq. 

Federal  question,  §§  290  et  seq. 

land  grants,  §  300. 

officers,  §§  301  et  seq. 

prejudice  of  state  court,  §§  295  et  seq. 

remanding,  see  that  heading. 

revenue  officers,  §§  305  et  seq. 

separable  controversy,  §§.290  et  seq. 
proceedings,  see  Procedure,  above. 

after  removal  in  classes  1,  2,  3,  §  294. 

generally,  §  312. 

proof  of  records  of  state  court  when  copies  refused  by  clerk,  §  308. 
records  of  state  court,  return  of,  §  309. 
remanding,  bias,  failure  to  show,  §  297. 

diverse   citizenship,   class   two,    §    298. 

Federal  question,  class  one,  §  298. 

fraud,  §  310. 

generally,  §  310. 

improperly   removed   cases,   §   310. 

prejudice,  failure  to  show,  §  297. 

separable  controversy  in  cases  removed  for  bias  or  prejudice,  §  206. 
remedies,  provisional,  in  state  courts,   preserved,  §  311. 
return  of  record  from  state  court,  enforcement  of,  §  309. 
revenue  officers,  cases  against,  §  304. 

certiorari    and    habeas    corpus,    §    307. 


1028  INDEX 

RKMOVAL  OF  CAUSES— continued. 

^'parable  controversy,  class  three,  §§  286,  289. 

remanding  in  cases  removed  for  bias  or  prejudice,  §  296. 
state   court,    bond   in   and    provisional    remedies,    preserved   on    removal, 

§  311. 

summary,  see  heading  Summaries,  Jurisdictions,  etc.,  ch.  12. 
treaties,  question  arising  under,  ground  for,  §§  221,  355; 

REPAIRS, 

lien  on  vessels  for,  §  2240. 

REPLEVIN, 

revenue  laws,  none  for  property  taken  under,  §  2233. 

REPLY, 

answer  in  equity,  when  required  to,  §  979. 
counterclaim  or  set-off  in  equity,  §  979. 
issue  on,  §  875. 
time  for,  §  874. 

REPORTER, 

Supreme  Court,  §  2454. 

REPORTS, 

circuit  court  of  appeals,   §   2409. 
court  of  claims,  §  2329. 
district  court  decisions,  §  20. 

investigations  of  accidents  from  failure  of  boilers,  not  admissible  in  dam- 
age suits,  §  459. 
master  in  chancery,  §  1034. 
Supreme  Court,  §  2454. 

REPRESENTATIVE  OF  DECEASED  PARTY, 

procedure  in   Supreme   Court   when   without  jurisdiction   of   trial   court, 

§  2089. 

procedure  in  circuit  court  of  appeals,  when  without  jurisdiction  of  trial 
court,  §  2091. 

REPRESENTATIVES, 

diverse  citizenship  of,  §  239. 

RESCUE, 

extradition,  intrastate,  penalty  .for,  §  2196. 

from  foreign  country,  penalty  for,  §  2194. 

RESIDENCE, 

assignor  of  plaintiff,  §  195. 

bill  in  equity,  allegation  of,  §  894. 

corporations,  allegations  of,  §  234. 


INDEX  1020 

RESPONSE, 

circuit  court  of  appeals. 

Rule  39  C.  C.  A.  (8th  circuit)  Appendix. 

RESTORATION  OF  RECORDS, 
judicial,  §  431. 

in  which  United  States  are  disinterested,  by  United  States  attorneys, 

§  435. 
service  of  notice  on  nonresidents,  §  433. 

RESTRAINING  ORDER, 
see  also  Injunction, 
bond,  §  1056. 
dissolution,  §  1059. 
filing,  §  1060. 

national  bank,  not  to  issue  in  state  court,  §  1071. 
notice  of,  §  1057. 
procedure  when  issued  without  notice,  §  1058. 

RETURN, 

amendment,  habeas  corpus,  §  2210. 

contract  to  Returns  Office  Department  of  the  Interior,  copy  as  evidence, 

§  444. 

copies  of  lost  or  destroyed,  as  evidence,  §  434. 
denial  of,  on  writ  habeas  corpus,  §  2210. 
form  of,  habeas  corpus  writ.  §  2207. 

process  in  equity,  §§  918,  919. 
habeas   corpus. 

amendment,  §  2210. 

denial  of  return,  §  2210. 

form  of  return,  §  2207. 

time  of  return,  §  2206. 
process  in  equity,  §§  911,  918,  919. 
removal  of  causes,  enforcement  of  return  of  record  from  state  to  Federal 

court,  §  309. 

rules  governing  in  equity,  §  919. 
subpoena  in  equity,  §§  864,  911,  918. 
time  of,  habeas  corpus  writ,  §  2206. 

in  equity,  §§  864,  911. 
venire  for  jury,  law  actions,  §  740. 
writ  of  error  Rule  14,  C.  C.  A.  Appendix. 

form  of   (8th  circuit)    Appendix. 

Addenda  to  Rule  45  C.  C.  A.   (8th  circuit)   Appendix. 

REVENUE, 

costs  against  nonsuited  plaintiff  in  action  against  officer,  double,  §  563. 

costs,  none  against  United   States  upon  information,  §  560. 

costs,  seizure  cases,  §  561. 

motion  and  notice  to  produce  books  and  papers,  §  712. 


1030  INDEX 

REVENUE continued. 

officers,   see   Revenue   Officers. 

priority   of   cases,   §   2222. 

prosecutions  of  fraud,  by  district  attorney,  §  2224. 

replevin  does  not  lie  for  property  taken,  §  2233. 

statutes  of  limitations,  §  395. 

suits   in  name  of  United   States,   §   2223. 

summary  of  several  jurisdictional  provisions,  §§  362.  369, 

venue,  §  176. 

witnesses  not  disqualified  by  claiming  compensation.  §  472. 

REVENUE  OFFICERS, 

certiorari  in  removal  cases,  §   307. 

executions,  when  do  not  issue  against,  §  792. 

habeas  corpus,  in  removal  of  cases  against,  §  307. 

procedure  in  removal  cases,  §  305. 

removal  of  causes  against,  class  eight,  §  304. 

REVERSAL, 

facts,  none  for  error  in,  §  844. 

REVIEW, 

appellate  court. 

differences,  law  and  equity,  §  6. 

certiorari,  final  decisions  of  circuit  courts  of  appeal.  §  2074. 
District  of  Columbia  court  of  appeals  by  Supreme  Court,  §  2019. 
state  court  decisions,  time  for,  §  2056. 
writ  of  error  to  state  court,  §  334. 

REVISED  STATUTES, 

authorized  editions,   §§  421,  423.    . 

Richardson's  Supplement  of  Revised  Statutes  as  evidence,   §  423. 

REVOCATION, 

of  appointment  of  outside  judges,   §   27. 

RHODE  ISLAND, 

districts,  terms  and  places  of  holding  court,  §  137. 

RIGHT, 

removal  by  writ  of  error,  state  court  decision  against,  §  337. 

RIVERS, 

jurisdiction  of  district  court  to  remove  obstructions   in,  §  200. 

ROOMS  FOR  HOLDING  COURT, 

court  of  customs  appeals,  §  2257. 


INDEX  1031 

RULES, 

admiralty,  circuit  court  of  appeals  follow  the  Addenda  to  Rule  45  C.  C.  A. 

Appendix, 
admission  to  practice, 

circuit  court  of  appeals,  §  2408. 

court  of  claims,  §  2302. 

district  court,  §  71. 

Supreme  Court,  §  2455. 

adopting  state  attachment  and  garnishment  remedies,  §  611. 
circuit  court  of  appeals  for  all  circuits,  Appendix, 
court  of  claims,  §  2315. 
court  of  customs  appeals,  §  2252. 
deposition,  form  of,  §  510. 

objections  to,   §   511. 

signing,    §   512. 
determining   jurisdiction    circuit   court   of   appeals   and    Supreme    Court 

when  question  of  jurisdiction  in  issue,  §  2003. 
equity,  annotated,  in,  Appendix. 

suit,  §§  8,  73. 

summary  of  proceedings,  ch.  29. 

regulating  proceedings,  §  880. 
law  actions,  §§  7,  72,  580. 
Supreme  Court,  in,  Appendix. 

RULINGS, 

exceptions  to,  in   law  actions,   §§   746,  747. 
trial  law   actions,  taking  of,   §   746. 
time  for  taking,  §  747. 


S. 

SALARY, 

see  headings  of  various  officers. 

SALE  OF, 

personal  property. 

appraisal  of,  on  execution,  §  804. 

place  of  sale  on  execution,  §  800. 
real  estate. 

marshal's  successor  to   continue  proceedings,   §   802. 

place  of  sale  on   execution,   §  800. 

purchase  by  government  in  government  suits,  §  803. 

SCANDAL, 

equity  suit,  removal  of,  §§  935,  955,  978. 

SCIRE  FACIAS, 

writ  of,  §  1068. 


1032  INDEX 

SCOPE, 

defensive  pleading  at  law,  §  674. 

SEAL, 

circuit  court  of  appeals,  Rule  2  C.  C.  A.  Appendix. 

§  2,  Rule  2,  6th  circuit  under  Rule  2  C.  C.  A.  Appendix. 

Department  of  Commerce  and  Labor,  judicial  notice  of,  §  457. 

SEAMAN, 

arrest,  deserting  foreign  vessel,  §  2197. 

consul's   jurisdiction    over,    §    206. 

witness  fees  when  sent  home  to  give  testimony  in  criminal  cases,  §  552. 

SEARCHES, 

under  custom  laws,  §  2225. 

SEDUCTION  OF  FEMALE  PASSENGERS  ON  VESSELS, 
statutes  of  limitations,  §  396. 

SEIZURES, 

burden  of  proof  under  customs  duties  laws,  §  458. 
for  embargo,  forfeiture,  insurrection,  venue,  §  178. 
letters  carried  contrary   to   law,   §   2242. 

disposal  of,  §  2243. 

procedure  in  cases  under  custom  laws,  §  2226. 
summary  of  several  jurisdictional  provisions,  §  367. 
under  custom  laws,  §  2225. 

SENTENCES, 

prize  cases,  appeals  to  Supreme  Court,  §  2004. 

SEPARABLE  CONTROVERSY, 
bo.ul  in  removal  cases,  §  291. 

remanding  of,   in  cases   removed   for   bias   or   prejudice,   §   296. 
removal  of  causes,  §§  286,  289. 

SERVANTS  OF  AMBASSADORS, 

Supreme   Courts,   suits  against  in,   §   2458. 

SERVICE, 

attachment  not  basis  for  substituted,  §  613. 
by  whom  made  in  equity,  §§  654,  916. 
form  of  return  of,  in  equity,  §  918. 
manner  of,  in  equity,  §  917. 
mesne  process  in  equity,  §§  916,  917. 
papers,  circuit  court  of  appeals. 

Rule  9,  6th  circuit,  Appendix, 
process  in  equity,  by  whom,  §§  654,  916. 

manner  of,   §§  655,   917. 


INDEX  1033 


SERVICE — continued. 

process  in  equity — return,  form  of,  §  918. 

return  of,   §  911. 

return,  time  for,  §§  864,  911. 
publication  of,  §  656. 
return  of,  process  in  equity,  §  911. 

form  on  process  in  equity,  §  918. 

time  for  in  equity,  §  864. 
subpoena,  by  whom,  §§  654,  916. 

manner  of,  §§  655,  917. 

return  of,  §  911. 

form  of,  §§  913,  918. 

time  for,  §§  864,  911. 

summons  in  equity,  see  Subpoena,  §§  654,  655,  916,  917. 
time  for,  in  equity,  §§  864,  911. 

SESSIONS, 

see  also  Terms. 

circuit  court  of  appeals,  Rule  3  C.  C.  A.  Appendix. 

Rule  36  C.  C.  A.    (9th  circuit)    Appendix, 
court  of  claims,  §  2304. 

customs   appeals,   §   2258. 
district  court,  ch.  4. 
Supreme  Court,  §  2456. 

SET-OFF, 

see  also  Counterclaim. 

amount  in  controversy,  effect  on,  §  267. 

answer  in  equity,  §§  980,  981. 

court  of  claims,  enforcement  of  judgment,  §  2331. 

SETTLEMENTS  FOR  CUSTOMS  DUTIES, 
statutes  of  limitations,  §  400. 

SHIFTING, 

parties  to  create  diverse  citizenship,  §  247. 

SIGNING, 

depositions,  Equity  Rule  as  to,  §  512. 

SLAVE   TRADE, 

statute  of  limitations,  §  394. 

summary  several  jurisdictional  provisions,  §  361. 

SOLICITOR  OF  THE  TREASURY, 
records,  copies  as  evidence,  §  437. 


10.34  INDEX 

SOLICITORS, 

see  also  Attorneys, 
fees  of,  §  539. 

SOUTH  CAROLINA, 

districts,  terms  and  places  of  holding  courts,  §   138. 

SOUTH  DAKOTA, 

districts,  terms  and  places  of  holding  court,  §  139. 

jurisdiction  district  court  over  crimes  on  Indian  reservations  in,  §  204. 

SPECIAL  APPEARANCE, 
to  quash  process,  §  657. 

SPECIAL  BAIL, 

suits  for  duties,  §  2228. 

SPECIAL  JURIES, 
see  also  Juries, 
trial  law  actions,  §  742. 

SPECIAL  TERMS, 

district  court,  §  62. 
Supreme  Court,  §  2456. 

SPECIAL  VERDICT, 

see  Verdict,  §  760. 

SPLITTING  DEMANDS, 

amount   in  controversy,   state   statutes  do   not  control,   §   270. 

STATE, 

court  records,  evidence  of,  §  424. 

courts,  see  State  Courts. 

criminal  jurisdiction  not  affected,  §  2105. 

district  courts  in,  ch.  4. 

diverse   citizenship,    not   citizens,    §   233. 

Federal  judicial  districts  in,  ch.  4. 

jurisdiction  of  offenses,  §  2104. 

concurrent  with  district  court,  §   193. 
laws,  see  State  Laws, 
legislative  acts,  evidence  of,  §  424. 
party  to  suit  in  Supreme  Court,  §  2458. 
practice,   see   State   Practice, 
priority  cases  where  a  party,  §  2222. 
records,  copies  as  evidence,  §  425. 
statutes,  see  State  Laws. 


INDEX  1035 

STATE  COURTS, 

appeals  from  decisions  of,  time  for,  §  2056. 

appellate  Federal  review  only  obtainable  by  writ  of  error,  §  332. 

bonds  in,  to  be  preserved  on  removal  of  cases,  §  311. 

court  records,  evidence  of,  §  424. 

injunction,  interlocutory,  not  to  issue  in,  against  national  banks,  §  1071. 

staying  of  proceedings,  §  1062. 
jurisdiction. 

concurrent  with   district  court,   §   193. 

criminal  cases,  §  2104. 

provisional  remedies  of,  preserved  on  removal  of  cases,  §  311. 
records,  evidence  of,  §  424. 
removal   of   causes   from,   see   Removal   of   Causes,   ch.    10   and   Removal 

from   State  Court  by  Writ  of  Error,   ch.   11. 

time  for  reviewing  decisions  of,  in  United  States  Supreme  Court,  §  2056. 
writ  of  error,  only  appellate  method  of  Federal  review,  §  332. 
writ  of  error,  time  for,  §  825. 

STATE  LAWS, 

amount  in  controversy,  do  not  control,  §  270. 

appellate  jurisdiction  Supreme   Court  where  Constitution   claimed  to  be 

contravened,  §  2007. 
attachment   laws,   adoption   of,   §   611. 

construction  of,  followed,  §  612. 

conformity  of  procedure  at  law  to,  see  Conformity,  ch.  18,  ch.  22. 
criminal,  where  adopted  in  Federal  courts,  §  2103. 

depositions  to  perpetuate  testimony  under,  when  admissible   in   Federal 
courts,  §  518. 

taking  of,  in  mode  prescribed   by   state   laws.   §   519. 
evidence  of,  §  424. 

garnishment  laws,  adoption  of,  §  610. 

hearing  application  for  injunction  against  enforcement,  §  1064. 
injunction  against  enforcement,   §   1063. 
penal,  where  adopted  in  the  Federal  courts,  §  2103. 
perpetuation  of  testimony  under,  depositions  when  admissible  in  Federal 

courts,  §  518. 

receivers  manage  properties  according  to,  §  1052. 
removal  by  writ  of  error  decision  in  state  court  upholding,  when  claimed 

repugnant  to  Federal  authority,   §  336. 
witnesses,  competence  of,  determined'  by,   §   470. 

STATE  PRACTICE, 

adoption  of,  in  Federal  law  actions,  see  Conformity,  §  7. 
differences  from  Federal  practice,  §  10. 
bill  in  equity,  §  891. 
complaint  at  law,  §  600. 

STATE  PROCEDURE, 

see  State  Practice  and  Procedure. 


10-']  6  INDEX 

STATUTES, 

see  also  Federal  Laws  and  State  Laws. 

evidence  of,  §§  421,  423. 

removal   by   writ   of   error   of   decision   in    state   court    against   validity, 

§  33. 
removal  by  writ  of  error  to  state  court  of  decision  against  right,  title, 

privilege,  or  immunity  claimed  under  Federal,  §  337. 

STATUTES  OF  LIMITATIONS, 
capital  offenses,  §  391. 
civil  rights,  conspiracy  against,  §  409. 
claims  against  United  States,  §  403. 
copyrights,   §§  401,  411. 
court  of  claims,  §  2314. 
crimes  under  internal  revenue  laws,  §  395. 
crimes  under  revenue  and  slave  trade  law's,  §  394. 
criminal   cases,    §   2107. 
customs  laws,   §§  399,  400. 
duties,  §§  399,  400. 
employers'  liability  act,  §  408. 

forfeiture  and  damage  suits  for  false  claims  against  United  States,  §  402. 
forfeiture  or  penalty  under  copyright  laws,  §  401. 
general  statement,  §  390. 
infringement  of  copyrights,  §  411. 
infringement  of  patent,   §  410. 
internal  revenue,  §§  394,  395. 
national  bank  stockholder's  liability,  §  412. 
naturalization  laws,  offenses,  §  397. 
offenses  capital,  §  391. 

not  capital,  §  392. 
patents,  Indian,  §  407. 

infringement,  §  410. 

land,  §  405. 

railway,  §  406. 

wagon   road,   §   406. 

penalties  and  forfeitures  under  customs  revenue  laws,  §  399. 
penalties  and  forfeitures  under  Federal  laws,  §  398. 
revenue  laws,  §  395. 

seduction  of  female  passengers  on  vessels,  §  396. 
settlements   for   customs   duties,   §   400. 
slave  trade,  §  394. 

stockholder's  liability  of  stockholders,  national  banks,  §  412. 
taxes,  recovery  of,  §  404. 

STAY, 

execution,  pending  motion  for  new  trial,  §  793. 
term,  for  one,  state  laws  so  allow,  §  794. 

STENOGRAPHER. 

in  equity  suits,  §  1004 


INDEX  1037 

STIPULATION, 

transfer  of  venue,  §  168. 

STOCKHOLDER, 

bill  in  equity  of,  §  901. 
same,  old  and  new  rules  compared,  §  902. 
same,  purposes  of  the  rule,  §  903. 
liability  of  stockholders,  national  banks,   §  412. 
statutes  of  limitations,  §  412. 

•SUBJECT-MATTER, 

partly  within  different  districts,  venue,  §  165. 

transfer  of,  to  give  jurisdiction  on  ground  diverse  citizenship,  §  240. 

SUBORNATION  OF  PERJURY, 
indictment  for,  §  2121. 

SUBPCENA, 

see  also  Subpoena  in  Equity. 

another  district,  witnesses  in,  §  483. 

claims,  cases  pending  in  Departments,  witnesses,  §  494. 

contested  patent  cases,  witnesses  in,  §  493. 

criminal  cases,  §§  479,  480,  481,  482. 

of  witnesses  for  indigent  defendant,  §  485. 
defendant,  on  behalf  of  indigent,  for  witnesses,  §  485. 
department,  claims  in,  witnesses,  §  494. 
government,  witnesses  for,   §  484. 

indigent,   compulsory   process   for   witnesses,    §   485. 
patent  cases,  contested,  witnesses  in,  §  493. 
United  States,  on  behalf  of,  for  witnesses,  §  484. 
witnesess,  see  that  heading,  ch.  15. 

SUBPCENA  DUCES  TECUM  TO  REGISTER  OF  LAND  OFFICE,  §  448. 

SUBPCENA  IN  EQUITY, 

see  also  Process  in  Equity  and  Service,  ch.  31. 
alias,  §  914. 
form  of,  §  911. 

return  of,  §§  918,  919. 
general   statement,    §    861. 
issue  of,  §  911. 
manner  of  service  of,  §   917. 
mesne  process,  is  the,  §  910. 
precipe  for,  §  912. 

process  in  equity,  is  the,  §§  910,  913. 
return  of,  §  911. 

form  of,  §§  918,  919. 

time  for,  §§  864,  911. 


1038  l.NDEX 

SUUPCENA  IN  EQUITY— continued. 

service  of,  by  whom  made.  §§  654,  916. 

manner  of,  §§  655,  917. 
summons  in  equity,  is  the,  §  910. 
time  for  return,  §§  864,  911. 

SUBSTITUTED  SERVICE, 

attachment  not  basis  for,  in  Federal  court,  §  613. 
publication  of  summons,  §  656. 

SUFFICIENCY,  , 

defensive  pleading  at  law,  §  674. 

SUITS  IN  EQUITY, 

see  also  Equity  Suits. 

rules  governing  (see  Equity. Rules  and  Index  in  Appendix)   §§  8,  73.  880. 

SUMMARIES, 

see  also  General  Statement. 

action  at  law,  ch.  18. 

amount   in  controversy,   see   heading   Summaries — Jurisdiction.    Amount. 

etc.,  below,  treated  in  ch.  12. 
appeal,  of  procedure  on,  §  2073. 
equity,  ch.  29. 

jurisdiction,  see  heading  Summaries — Jurisdiction,  etc.,  ch.  12. 
law,  ch.  18. 
procedure  on  appeal,  §  2073. 

on  writ  of  error,  §  839. 
proceedings  in  equity,  ch.  29. 

removal,  see  heading  Summaries — Jurisdiction,  etc.,  ch.  12. 
venue,  see  heading  Summaries — Jurisdiction,  Venue,  etc..  ch.  12. 

SUMMARIES— JURISDICTION,   AMOUNT  AND  VENUE   FOR  THE  SEV- 
ERAL MATTERS  OF  DISTRICT  COURT  COGNIZANCE, 
admiralty,  §  360. 
aliens,  §§  358,  373,  ch.  8. 
amount  in  controversy,  ch,  12,  ch.  9. 
assignee  of  debentures  for  drawback  of  duties,  §  368. 
bankruptcy,  §  375. 

citizens  of  different  states,  suits  between,  §  356.  ch.  8. 
citizens  of  a  state  and  foreign  citizens  or  subjects,  suits  between,  §  358. 

ch.  8. 

citizens  of  a  state  and  a  foreign  state,  suits  between,  §  357,  ch.  8. 
civil  rights  laws,  §   370. 

civil  suits.  United  States  or  its  officers,  §  351. 
claims  against  United  States,  §.376. 
commerce  laws,  §  365. 
Constitution,  §  353. 


INDEX 

SUMMARIES— JURISDICTION,  ETC.— continued, 
copyright   laws,   §   364. 
crimes  and  offenses,  §  359,  ch.  42. 
district  court,  jurisdictional  provisions,  ch.  12,  ch.  6. 
diverse  citizenship,  §§  356,  357,  358,  ch.  8. 
duties,  assignee  of  debenture  for  drawback  of  duties,  §  368. 
equity  suits,  ch.  29. 
Federal  laws,  generally,  §  354,  ch.  7. 
foreign  citizens  and  citizens  of  a  state,  §  358,  373,  ch.  8. 
forfeitures,  §  366. 

on  high  seas,  §  367. 

general  statements  as  to  summaries,  §  350. 
immigration  laws,  §  378. 
interstate  commerce  laws,  §  365. 

jurisdictional  provisions  district  court,  ch,  12,  ch.  6. 
land  grants  of  different  states,  §  352. 
law  actions,  ch.  18. 

laws  of  the  United  States,  generally,  §  354,  ch.  7. 
maritime  cases,  §  360. 
monopolies,  §  379. 
national  banks,  §  372. 
offenses,  §  359,  ch.  42. 

office,  suit  to  recover  possession  of,  §  371. 
officer,  suits  by  Federal,  §  351. 
original  jurisdiction,  district  court,  ch.   12,  ch.  6. 
partition  suits,  United  States  a  party,  §  381. 
patents,  §  364. 
penalties,  §  366. 
postal  laws,  §  363. 
public  lands,   §   377. 
removal,  ch.  12,  ch.  10. 

removal  by  writ  of  error  to  state  court,  ch.  11. 
revenue,  §§  362,  369. 
seizures,  §  367. 
slave  trade,  §  361. 
treaties,  §  355. 

torts,  suits  of  aliens  for,  §  373. 
trademark,  §  364. 
trade  restraints,   §   379. 
United  States, 

party  in  partition  suits,  §  381. 

suits  by,  §  351. 
venue,  ch.  12,  ch.  5. 
vote,  protection  of  right  to,  §  369. 

SUMMONS  IN  EQUITY, 

see  also  Subpoena  in  Equity,  ch.  31. 
form  of,  §  911. 

return  of,  §§  918,  919. 
issue  of,  §  911. 


1040  IND1SX 

SUMMONS  IN  EQUITY— continued, 
manner  of  service  of,  §§  655.  917. 
precipe  for  subpoena,  §  912. 
return  of,  §§  918,  919. 
service  of,  by  whom  made,  §§  654,  916. 

manner  of,  §  917. 
subpoena  is,  §  910. 
time  for  return,  §§  864,  911. 

SUPERSEDEAS,  §  2063, 
bond, 

Rule  13  C.  C.  A.  Appendix, 
bond,  form  of,  8th  circuit,  Appendix. 

Addenda  Rule  45  C.  C.  A.  Appendix, 
writ  of  error,  §  834. 

SUPPLEMENT, 

Little  and  Brown's  evidence,  §  422. 

SUPPLEMENTAL  PLEADING, 
answer  in  equity,  §  979. 
bill  in  equity,  §  907. 

SUPPLIES, 

lien  on  vessel  for,  §  2240. 

SUPREME  COURT,  ch.  49, 

actions  at  law  in,  issues  of  fact,  §  2458. 

adjournments  of,  §  2457. 

admission  to  practise  before,  §  2455. 

aliens,  suits  between  a  state  and,  §  2458. 

ambassadors,  suits  against  in,  §  2458. 

appeals  to,  from  circuit  courts  of  appeal,  time  for,  §  2055. 

appeals  to,  from  district  court,  time  for,  §  2052. 

appellate  jurisdiction,  see  Appellate  Jurisdiction  of  Supreme  Court,  ch.  39. 

assistant  marshal,  §  2453. 

associate  justices,  order  of  precedence,  §  2450. 

bond,  of  clerk,  §  2452. 

certification  to,  by  circuit  court  of  appeals,  §  2075. 

chief  justice  of,  §  2450. 

citizens,  suits  between  a  state  and,  §  2458. 

clerk, 

bond  of,  §  2451. 

liability  for  misfeasance  of  deputy,  §  2452. 
-consul,  a  party  in,  §  2458. 

copies  of  lost  or  destroyed  records  as  evidence,  §  432. 
death  of  party  pending  appeal  to,  §.2089. 
•decisions  of,  §  2454. 
deputy  clerks,  §  2452. 


INDEX  1041 

SUPREME  COURT— continued. 

domestics  of  ambassadors,  suits  involving,  §  2458. 

duties  of  marshal,  §  2453. 

duties  of  reporter,  §  2454. 

exclusive  jurisdiction  of,  §  2458. 

fact,  issues  of,  in,  §  2458. 

general  statement,  §  3. 

issues  of  fact  in,  §  2458. 

jury  for  issues  of  fact  in,  §  2458. 

judges,  §  2450. 

jurisdiction, 

exclusive,  §  2458. 

original,  §  2458. 

law  actions,  issues  of  fact,  in,  §  2458. 
mandamus  and  prohibition,  §  2459. 
marshal,  §  2453. 
messengers,  §  2453. 

misfeasance  of  deputy  clerk,  liability  of  clerk  for,  §  2452. 
original  jurisdiction,  issues  of  fact,  §  2458. 
party, 

ambassador,  as,  in,  §  2458. 

citizens  as,  in,  §  2458. 

consul  as,  in,  §  2458. 

domestics  of  ambassadors  to,  §  2458. 

public  minister  as,  in,  §  2458. 

servants  of  ambassadors  as,  in,  §  2458. 

state  as,  §  2458. 

vice  consul  as,  §  2458. 
printing  of  record  on  appeal  to,  §  2070. 
procedure, 

on  appeal  from  Alaska  district  court,  §  2076. 
Hawaii   supreme  court,   §  2081. 
Philippine  Islands  supreme  court,  §  2078. 
Porto  Rico  supreme  court,  §  2077. 
prohibition  and  mandamus,  §  2459. 
public  ministers,  suits  against,  in,  §  2458. 
quorum,  §  2450. 

reduction  and  preparation  of  record  on  appeal  to,  §  2067. 
reports,  §  2454. 
reporter,  §  2454. 
salary, 

assistant  marshals,  §  2453. 

justices,   §  2450. 

marshal,  §  2453. 

reporter,  §  2454. 

servants  of  ambassadors  or  other  public  ministers,  §  2458. 
special  terms,  §  2456. 
state  as  a  party  in,  §  2458. 
terms,   §  2456. 

Monte.— -  i- 


1042  INDEX. 

SUPREME  COURT— continued. 

time  for  appeal  to,  from  circuit  court  of  appeals,  §  2055. 

to,  from  district  court,  §  2052. 

transcript  in,  use  of  circuit  court  of  appeals  record  as  part  of,  §  2070. 
trial  of  issues  of  fact  in,  §  2458. 
vacancy  in,  §  2450. 
vice  consul  as  a  party  in,  §  2458. 
women  may  practise  before,  §  2455. 
writ  of  error   (see  that  heading)   ch.  28. 
writ  of  mandamus,  §  2459. 
writ  of  prohibition,  §  2459. 

SURVIVAL  OF  LAW  ACTION,  §  692. 

T. 

TABLE  OF  COSTS, 

promulgated  by  Supreme  Court  contained  in  Rule  27  C.  C.  A.  Appendix. 
Rule  29  C.  C.  A.  (4th  circuit)  Appendix. 

TAKING  EXCEPTIONS, 

trial,  law  actions,  §  746. 

TALESMEN, 

petit  juries,  741. 

TARIFF  LAWS, 

see  also  Revenue  Laws  and  Customs, 
continuances  of  suits  under,  §  696. 

TARIFFS, 

giving  rebate,  prosecution  for  failure  to  file,  venue,  §  179. 

TAXABLE  COSTS  AND  FEES,  §  531. 

TAXES, 

injunction  does  not  issue  against  assessment,  §  1072. 
statutes  of  limitations  for  recovery  of,  §  404. 
venue,  §  176. 

TEMPORARY  RESTRAINING  ORDER, 

see  Restraining  Order  and  Injunction,  §§  1056,  1059,  1060,  1071. 

TENNESSEE, 

districts,  terms  and  places  of  holding  court,  §  140. 

TERM, 

execution,  stay  of,  for  one  term  when  state  law  so  allows,  §  794. 


INDEX.  1043 


TERMS, 

altering,  district  court,  effect  of,  §  67. 

circuit  court  of  appeals,  Rule  3  C.  C.  A.  Appendix. 

Rule  36  C.  C.  A.  (9th  circuit)  Appendix, 
district  court,  see  Terms  of  District  Court,  ch.  4. 

effect  of  altering,   §  67. 

special,  §  62. 
Supreme  Court,  §  2456. 

TERMS  OF  DISTRICT  COURT,  ch.  4. 
Alabama,  §  101. 
Arkansas,  §  102. 
Arizona,  §  103. 
California,  §  104. 
Colorado,  §  105. 
Connecticut,   §   106. 
Delaware,  §  107. 
Florida,  §  108. 
Georgia,  §  109. 
Idaho,  §  110. 
Illinois,  §  111. 
Indiana,  §  112. 
Iowa,  §  113. 
Kansas,  §  114. 
Kentucky,  §  115. 
Louisiana,  §  116. 
Maine,  §  117. 
Maryland,  §  118. 
Massachusetts,  §  119. 
Michigan,  §  120. 
Minnesota,  §  121. 
Mississippi,  §  122. 
Missouri,  §  123. 
Montana,  §  124. 
Nebraska,  §  125. 
Nevada,    §    126. 
New  Hampshire,  §  127. 
New  Jersey,  §  128. 
New  Mexico,  §  129. 
New  York,  §  130. 
North  Carolina,  §  131. 
North  Dakota,  §  132. 
Ohio,  §  133. 
Oklahoma,   §  134. 
Oregon,  §  135. 
Pennsylvania,  §   136. 
Rhode  Island,  §  137. 
South  Carolina,  §  138. 


1044  INDEX 

TERMS  OF  DISTRICT  COURT— continued. 
South  Dakota,  §  139. 
Tennessee,   §   140. 
Texas,  §  141. 
Utah,  §  142. 
Vermont,  §  143. 
Virginia,  §  144. 
Washington,   §   145. 
West  Virginia,  §  146. 
Wisconsin,  §  147. 
Wyoming,  §  148. 

TERRITORIAL  CITIZENS, 

are  not  citizens  so  as  to  base  jurisdiction  on  diverse  citizenship,  §  232. 

TERRITORIAL  COURTS, 

district  court's  jurisdiction  of  cases  transferred  from,  §  209. 
Supreme  Court's  jurisdiction,  §  2017. 
writ  of  error  to,  §  841. 

TERRITORIAL  JURISDICTION, 

see  Venue,  ch.  5,  and  Places  of  Holding  District  Courts,  ch.  4. 

TERRITORIAL  RECORDS, 
transfer  of,  §  69. 

TERRITORY, 

diverse  citizenship,  not  a  citizen,  §  233. 

extradition  of  fugitive  from  foreign  under  control  of  United  States,  §  2183. 

Supreme   Court   jurisdiction   where  judgment   rendered   after   admission, 

§  2017. 
writ  of  error  to,  §  841. 

TESTIMONY, 

before  commissioners,  court  of  claims,   §  2321. 
compelling,  for  depositions  under  a  commission,  §  516. 
competence  of  witness,  see  Competence. 
Congress,  immunity  of  witness,  §  476. 
depositions,  see  that  heading,  ch.  16. 

to  be  used  in  foreign  country,  §  524. 
enforcing  for  depositions  under  commission,  §  516. 
enforcing  of  witnesses,  §§  486,  492,  495,  497. 
immunity  of  witnesses,  §§  474,  477. 
perpetuation  of,  §  518. 
witnesses,  see  that  heading,  ch.  15. 
enforcing  of, 

claim  cases  in  Departments,  §  495. 

generally,  §  486. 

interstate  commerce,   §  497. 

patent  cases,  §  492. 


INDEX  1045 


TEXAS, 

districts,  terms  and  places  of  holding  court,  §  141. 

THIRD  PARTY  CLAIM, 

attachment,  §  623. 

TIME, 

answer  in  equity,  ch.  34. 

generally,  §§  865,  972. 

after  overruling  motion  to  dismiss,  §  867. 

amended  bill,  §  868. 
appeal,  ch.  41. 

circuit  court  of  appeals,  to  Supreme  Court,  §  2055. 

court  of  claims,  §  2012. 

court  of  customs  appeals,  §  2260. 

district  court  to  circuit  court  of  appeals,  §  2053. 

from  interlocutory  orders,  §  2054. 
district  court  to  Supreme  Court,  §  2052. 
calendar,  see  that  heading. 

equity,  §  876. 
counterclaim  in  equity,  §  972. 

service  on  other  defendants,   §   872. 

reply   to,   §   874. 
default, 

equity,  §  931. 

law,  §  672. 

decree  pro  confesso,  ch.  32,  §  930. 
defensive  pleading, 

equity,  ch.  33,  §  930. 

law,  ch.  22,  §  071. 
depositions,   see  that   heading,   ch.   16. 

equity,  §§  502,  863,  871,  877. 

law,  §  501. 
discovery, 

equity,  §§  862,  870. 

law,  §  711. 

exceptions  at  trial,  §  747. 
habeas  corpus,  return  of  writ,  §  2206. 
hearing,  see  that  heading. 

motion  to  dismiss,  §  866. 
holding  court  in  the  several  districts,  ch.  4. 
interrogatories  in  equity,  §§  862,  870. 
issuance  of  process  in  equity,  §§   861,  911. 
issue  in  equity,  §§  869,  875. 
motion  to  dismiss,  §  865. 

hearing  of,  §  866. 

motion  to  strike  out  defense  in  equity,  §  873. 
precipe  for  subpoena  in  equity,  §§  861,  911. 
process  in  equity,  §§  861,  911. 

return  of,  §§  864,  891,  911. 


1046  l.XDEX 

TJ  ME— continued. 

reinstatement  case  on  equity  calendar,  §  879. 

reply  in  equity,  §§  874,  979. 

returns, 

appeals,  §  2072. 

habeas  corpus  writ,  §  2206. 

process  in  equity,  §§  864,  891,  911. 

writ  of  error,  §§  838,  2072. 
service, 

counterclaim  on  other  defendants  in  equity,  §  872. 

process  in  equity,  §§  864,  891,  911. 
subpo?na  in  equity,  §§  861,  864,  891,  911. 
taking  exceptions,  law  actions,  §  747. 
writ  of  error, 

circuit  court  of  appeals  to  Supreme  Court,  §  824. 

district  court  to  circuit  court  of  appeals,  §  823. 

district  court  to  Supreme  Court,  §  822. 

return  of,  §  2072. 

state  court  to  Supreme  Court,  §§  825,  826,  2056. 

TIME  AND  PLACES  OF  HOLDING  DISTRICT  COURTS,  ch.  4. 

TITLE, 

clouded,  venue,   §  116. 

removal  by  writ  of  error  state  court  decision  against,  §  337. 

TORTS, 

aliens,  action  for,  summary  of  several  jurisdictional  provisions,  §  373. 

TRADEMARK  CASES, 

expert  witnesses  in,  §§   1001,  1005. 

summary  of  several  jurisdictional  provisions,  §  364. 

TRADEMARKS, 

copies  of  Patent  Office  records  as  evidence,  453. 

TRADE  RESTRAINTS, 

summary  of  several  jurisdictional  provisions,  §  379. 

TRANSCRIPT  ON  APPEAL,  §  2066, 
record,  circuit  court  of  appeals, 

Rule  26  C.  C.  A.    (8th  circuit),  Appendix. 
Addenda  Rule  45  C.  C.  A.  Appendix. 

TRANSFER, 

by  stipulation,  venue,  §  168. 

from  equity  to  law  side,  §  936. 

of  subject-matter  to  create  diversity  of  citizenship.  §  246. 

of  territory,  how  affects  venue,  §   169. 


INDEX  1047 

TRANSFERRED  CASES   FROM   TERRITORIAL   COURTS, 
jurisdiction  district  court  over,  §   209. 

TRANSLATIONS, 

Rule  15  C.  C.  A.  Appendix. 

• 

TRANSPORTATION, 

extradited  person,  to  the  United  States,  §  2192. 

TRAVERSE, 

court  of  claims,  §  2319.  • 

TREASURY  DEPARTMENT, 

books  and  proceedings  in  embezzlement  suits.  §  443. 

evidence,  §  443. 

records  in  suits  against  delinquents,  copies  as  evidence,  §  441. 


TREATY, 

appeal  to  Supreme  Court  where  drawn  in  question,  §  2006. 

claims  under,  no  jurisdiction,  court  of  claims,  §  2313. 

extradition  provisions  continue  during  existence  of,  §  2191. 

Federal  question  arising  under,  §§  220,  355. 

removal  by  writ  of  error  decision  in  state  court  against  validity,  §  335. 

removal  by  writ  of  error  to  state  court  of  decision  against  right,  titk\ 

privilege,  or  immunity  claimed,   independence,   §   337. 
removal  case  involving  question  under,  §  221. 
summary  of  several  jurisdictional  provisions  affecting  cases  under,  §  355. 

TRIAL, 

actions  at  law,  see  Law  Actions,  ch.  25. 

Supreme  Court,  §  2458. 
admissibility  of  evidence,  equity,  §  1003. 

affidavits -of  experts  in  patent  and  trademark  cases,  §§  1001,  1005. 
amendment  of  verdict  at  law,  §   762. 
bill  of  exceptions,  §§  765,  766. 
challenges  to  jury,  §  743. 
charge  to  jury,  §  749. 
conclusion  of,  in  new  term,  §  65. 
conduct  of,  at  law,  §  748. 
constitutional  jury,  twelve  men,  s?  733. 
costs  and  fees,  see  that  heading,  ch.  17. 
criminal  cases,  see  Criminal   Procedure,  ch.  42,   §   2147. 
demand  to  admit  execution  and  genuineness  of  documents,  §   1011. 
depositions,  see  that  heading,  ch.  16. 

equity,  §  1011. 

diverse  citizenship,  want  of,  appearing  on,  §  250. 
drawing  jury,  §  738. 
equity  suits,  see  that  heading,  ch.  35. 
evidence,  see  that  heading,  ch.  14. 

admissibility  in  equity,  §  1003. 


1048  INDEX 

TRIAL — continued, 
exceptions, 

bill  of,  §§  765,  766. 

taking  of,  §  746. 

time  for  taking,  §  747. 

excluding  jurors,  penalty  under  civil  rights  act,  §  736. 
execution,  see  that  heading, 
exemptions  of  jury,  §  734. 

after  term  of  service  in  a  year,  737. 

civil  rights  acts,  §  735. 

expert  witnesses  patent  and  trademark  cases,  §§  1001,  1005. 
extradition,  surrender  of  prisoner  for  a  fair  trial,  §  2188. 
general   statement,  §   730. 

equity  suits,  §  1000. 

form  and  effect  of  verdict,  §  761. 

impaneling  jury,   §   739. 

infringement  suits,  §  1012. 

instructions  to  jury,  §  749. 
interrogatories    (equity)    §§  1006,  1011. 
issuance  of  venire,  §  740. 
issues  of  fact  in  Supreme  Court,  §  2458. 
judge,  trial  at  law,  §§  589,  744. 
judgment  at  law,  see  that  heading,  ch.  27. 
judgment  non  obstante  veredicto,  §  763. 
jury,  see  that  heading. 

law  actions,  §§  588,  731,  743. 

right  of  accused  to,  §  2143. 
law  actions,  see  that  heading,  .ch.  25. 
method  of,  at  law,  §§  731,  732. 
mode  of  proof, 

at  law,  §  745. 

in  equity,  §  1002. 

motion  for  new  trial  at  law,  §  764. 
petit  jury,  see  Jury,  §§  731,  743. 
pleading,  see  that  heading, 
proof  in  actions  for  infringement,  §  1012. 

mode  of,  in  equity,  §  1002. 

at  law,  §  745. 

removal  for,  of  offenders  against  United  States,  §  2126. 
return  of  venire  of  jury,  §  740. 
rulings,  exceptions  to,  §§  746-7. 

taking  of,  §  746. 

time  for  taking,   §   747. 
special  juries,  §  742. 

verdict,  §  760. 

statutes  of  limitations,  see  that  heading,  ch.  13. 
stenographer,  equity  suits,  §  1004. 
Supreme  Court,  issues  of  fact,  §  2458. 
taking  exceptions,   §   746. 


INDEX  1049 

TRIAL — continued. 

talesmen  petit  juries,  §  741. 
terms  of  court,  see  Terms, 
time  for  taking  exceptions,  §  747. 
venire,  issuance  and  return,  §  740. 
venue,  see  that  heading,  ch.  5. 
verdict,  effect  of,  §  761. 

form  of  general,  §  761. 
witnesses,  see  that  heading,  ch.  15. 

experts  in  patent  and  trademark  cases,  §  1005. 

TRIAL  CALENDAR, 

in  equity  suits,  §  876. 

TRUSTEES, 

diverse  citizenship  of,  §  240. 

U. 

UNITED  STATES, 
see  also  Federal. 

attendance  of  witnesses,  enforcing,   §§   484,   494,   495,   497. 
no  bond  required  of,  on  appeal,  §  2062. 
party   in  partition  suit, 

summary  of  several  jurisdictional  provisions,  §  381. 
suits  by, 

summary  of  several  jurisdictional  provisions,  §  351. 
witnesses,  recognizance  of  in  criminal  cases  on  behalf  of,  §  482. 

subpoena  for,  on  behalf  of,  §  484. 

UTAH, 

districts,  terms  and  places  of  holding  court,  §  142. 

V. 
VACANCY, 

district  judge's  office,  continuance,  §  64. 
Supreme  Court,  §  2450. 

VACATION, 

judgment  law  actions,  §  790. 

by  granting  new  trial,  §  793. 

VENIRE, 

for  jury,  §  740. 

VENUE  OF  ACTIONS,  ch.  5. 
absent  defendant,  §  166. 
civil  suits,  in  general,  §  161. 
cloud  on  title,  §  166. 


1050  INDEX 

VENUE  OF  ACTIONS— continued. 

condemnation,  insurrectionary  property,  §  177. 

Comptroller  of  Currency,  injunction  against,  §  172. 

creation  of  new  district,  how  affects,  §  169. 

crimes  and  offenses,  §  174. 

criminal  prosecutions,  §  2106. 

defendant,  absent,  §  166. 

defendant  in  different  districts,  §  164. 

defendants,  part  of,  not  found,  §   173. 

diverse  citizenship,  cases  of,  §  248. 

embargo,  seizure  for,  §  178. 

enforcement  of   lien  upon   creation   or   transfer   of  district   or   tt/ritory, 

§  170. 

Federal  question,  cases  involving,  §  222. 
forfeitures  and  penalties  in,  §  175. 
forfeitures,  seizures  for,   §   178. 
general  statement,  §  160. 
infringement  of  patent,  §  171. 
in  general,  §  160. 

injunctions  against  Comptroller  of  Currency,  §   172. 
insurrection,  seizure  for,  §  178. 
insurrectionary  property,  condemnation  of,  §  177. 
internal  revenue  and  taxes,  §  176. 

Interstate  Commerce  Commission,  suits  affecting  order  of,  §  180. 
jurisdiction  of  receiver  over  real  property  outside  of  district,  §  167. 
lien  not  devested  by  creation  of  new  district  or  transfer  of  territory,  §  170. 
lien,  how  enforced,  on  creation  or  transfer  of  district  or  territory,  §  170. 
liens,  generally,  §  166. 

local  suit,  subject-matter  partly  within  several  states,  §   165. 
local  suit  against  defendant  in  different  district,  same  state,  §  164. 
new  district  created,  effect  of,  §  169. 

nonlocal  suits  in  district  of  more  than  one  division,  §  163. 
nonlocal  suits  in  state  of  more  than  one  district,  162. 
offenses  and  crimes,  §  174. 
part  of  defendants  not  found,  §  173. 
patent,  infringement  of,  §  171. 
penalties  and  forfeitures,  §   175. 
property,  condemnation  of  insurrectionary,  §  177. 
prosecutions  for  failure  to  file  rebate  tariffs,  §  179. 

real  property,  receivers'  jurisdiction  over,  outside  districts  in  circuit,  §  167. 
rebate,  prosecution  for  failure  to  file  tariff  giving,  §  179. 
receivers,  jurisdiction  over  real  property  outside  district  in  circuit,  §  167. 
revenue,  internal,  §  176. 

seizure,  embargo,  forfeiture,  insurrection,  §  178. 
stipulation,  transfer  by,  §  168. 
subject-matter  partly  in  different  districts,  §  165. 
summary,  see  heading  Summaries — Jurisdiction,  Amount  and  Venue,  etc. 

ch.  12. 
tariffs  giving  rebate,  prosecution  for  failure  to  file,  §  179. 


INDEX  1051 

VENUE  OF  ACTIONS— continued. 

taxes  and  internal  revenue,  §  170. 
territory,  transfer  of,  how  affects,  §  169. 
title  clouded,   §   166. 
transfer  by  stipulation,  §  168. 
transfer  of  territory,  how  affects,  §  169. 

VERDICT,  ch.  26, 

amendment  of,  §  762. 

criminal  case,  for  less  offense  than  charged,  §  2148. 

against  one  or  more  several  joint  defendants,  §  2149. 

qualified,  in  cases  of  murder  in  first  degree  or  rape,  §  2150. 
form  and  effect  of  general,  761. 
law  action,  §  591. 
special  verdict,  §  760. 

VERIFICATION,  §  714. 

answer  in  equity,  §§  970,  974. 
bill  in  equity,  §§  898,  899. 
bill  of  costs,  §  532. 
complaint  at  law,  §  604. 

VERMONT, 

criminal  cases,  recognizance  of  witnesses.  §  481. 
districts,  terms  and  places  of  holding  court,  §  143. 

VICE  CONSUL, 

see  also  Consul. 

Supreme  Court,  party  to  suit  in,  §  2458. 

VIRGINIA, 

districts,  terms  and  places  of  holding  court,  §  144. 

VOTE, 

right  to,  protection  of, 

summary  of  several  jurisdictional  provisions,  §  369. 


W. 

WAGON   ROAD. 

patents,  statute  of   limitations,   §  406. 

WARRANT, 

arrest  of  fugitive  from  foreign  country,  §  2180. 
searches  and  seizures  under  custom  law,  §  2225. 

WAR  RECORDS, 

copies  as  evidence  in  suits  against  delinquents,  §  441. 


1052  INDEX 

WASHINGTON, 

districts,  terms  and  places  of  holding  court,  §  145. 

WEST  VIRGINIA, 

districts,  terms  and  places  of  holding  court,  §  146.      , 

WHIPPING, 

abolished,  §  2166. 

WHITE  SLAVE  TRAFFIC, 

jurisdiction  district  court,  §  201. 

WISCONSIN, 

districts,  terms  and  places  of  holding  court,  §  147. 

WITNESSES, 

accused  as  against  himself,  §  478. 
action  at  law,  §  590. 
anti-trust  law,  under,  §  474. 
attendance, 

claim  cases  in  Departments,  §  494. 

enforcing,  §§  484,  486,  492,  495,  498,  508,  516,  524. 

depositions  de  benc  esse,  §  508. 

under  commission,  §§  515,  516. 

to  be  used  in  foreign  country,  §  524. 

income  tax  law,  §  498. 

patent  cases,  §  492. 

for  United  States,  §  484. 
claim  cases  in  Departments,  §§  494,  495. 
commerce  laws,  attendance  enforcing  under  interstate  commerce  act,  §  497. 

immunity  under,  §  474. 

testimony  enforcing  under  interstate  commerce  act,  §  497. 
compelling  attendance,  see  Attendance,  above, 
competence,  anti-trust  laws  immunity,  §  474. 

commerce  laws,  immunity,  §  474. 

Congress,  immunity,  §  476. 

criminal  cases,  immunity,  §  475. 
defendant,  §  478.' 

customs,  revenue  laws,  §  472. 

defendant  in  criminal  cases,  §  478. 

determined  generally  by  state  laws,  §  470. 

immunity  of  witnesses,  §§  474,  475,  476,  477. 

judicial  proceedings,  immunity,  §  477. 

officers  and  informers  not  disqualified  in  suits  for  fines,  penalties,  or 
forfeitures,  §  473. 

perjury  does  not  disqualify,  §  471. 

revenue  law,  not  disqualified,  §  472. 

state  laws  determine,  §  470. 

testimony,  se>  that  heading. 


INDEX  1053 

WITNESSES — continued. 

compulsory  attendance,  §§  484,  486,  492,  495,  497,  498,  508,  510,  524. 

process  criminal  cases,  §  479. 

for  United  States  district  attorney,  §  482. 
Vermont,  §  481. 

testimony,  §§  486,  492,  495,  497. 
Congress,  immunity  of  witnesses,  §  476. 
contempt,  court's  power  to  punish  for,  §  487, 
court  of  claims,  §  2324. 
court  officer  not  entitled  to  fees  as,  §  549. 
criminal  cases,  compulsory  process  for,  §§  479,  480,  481,  482. 

defendant  as  a  witness,  §  478. 

immunity,  §§  474,  475. 

recognizance  of,  §§  480,  481,  482. 

of  indigent  defendant,  §  485. 

customs  laws,  not  disqualified  by  claiming  compensation  under,  §  472. 
defendant  in  criminal  proceedings,  §  478. 

subpoena  on  behalf  of  indigent,  §  485. 
department,  claim  cases  in,  subpoena,  §  494. 
district,  subpoena  for  witnesses  in  another,  §  483. 
district  attorney,  recognizance,  §  482. 
enforcing  attendance,  see  Attendance,  above, 
experts  in  patent  and  trademark  cases,  §§  1001,  1005. 
extradition,  indigent  prisoners,  §  2186. 
fees  of,  §  548. 

claim  cases  in  Departments,  §  496. 

criminal  examination,  United  States  liable  for  only  four  witnesses, 
§  553. 

depositions  in  District  of  Columbia,  §  550. 

letters  rogatory  from  foreign  country,  §  551. 

mileage,  §§  488,  489. 

double  prohibited,  §  490. 

patent  cases,  §  493. 

prize  cases,  how  paid,  §  554. 

seaman  sent  home  to  give  testimony  in  criminal  cases.  §  552. 
fines,  suits  for,  officers  and  informers  not  disqualified  as,  §  473. 
forfeitures,  suits  for,  officers  and  informers  not  disqualified  as,  §  473. 
government,  recognizance  of,  §  482. 

subpoena  of  witnesses  for,  §  484. 
immunity  of,  anti-trust  laws,  §  474. 

commerce  laws,  §  474. 

Congress  before,   §   476. 

criminal  cases,  §§  474,  475. 

judicial  proceedings,  §  477. 

letters  rogatory  need  not  incriminate,  §  525. 
income  tax  law,  compulsory  attendance,  §  49S. 

indictment  for  capital  crimes,  accused  entitled  to  compel,  §  2142. 
incompetent,   see  Competence  and   Immunity, 
incrimination,  see  Immunity. 


1054  INDEX 

\V  I TN  ESSES— continued. 

indigent  defendant,  subpoena  on  behalf  of,  §  485. 

informers  not  disqualified  in  suits  for  fines,  penalties,  or  forfeitures,  §  473. 

interstate  commerce  act,  enforcing  attendance  and  testimony  of,  §  497. 

immunity  of  witnesses  under,  §  474. 
judicial  proceedings,  immunity  of,  §  477. 
letters  rogatory,  §§  523,  525,  551. 

list  of,  to  be  given  to  person  indicted  for  treason  or  capital  offense,  §  2141. 
mileage,  amount,  §§  488,  489,  490. 

double  prohibited,  §  490. 

officers  not  disqualified  in  suits  for  fines,  penalties  or  forfeitures,  §  473. 
patent  cases,  enforcing  attendance  and  testimony  of,  §  492. 

fees  of,  in,  §  493. 

subpoena   for,   in   contested   cases,    §   491. 

penalties  in  suits  for  officers  and  informers  not  disqualified  as,  §  473. 
perjury  not  a  disqualification,  §  471. 
process  for,  see  Subpoena,  below, 
recognizance  in  criminal  cases,  §  480. 

in  Vermont,  §  481. 

for  United  States,  §  482. 

revenue  laws,  not  disqualified  by  claiming  compensation  under,  §  472. 
state  laws  determine  generally  competence,  §  470. 
subpoena,  another  district,  §  483. 

claim   cases  in  Departments,   §  494. 

contested  patent  cases,  §  493. 

criminal  cases,  §§  479,  480,  481,  482,  485. 

government,  §  484. 

in  behalf  of  indigent  defendant,  §  485. 

patent  cases,  §  493. 

United  States.  §  484. 
testimony,  enforcing,  §§  486,  492,  495,  497. 

claim  cases  before  Departments,  §  495. 

competence,  see  that  heading,  above.         ;;(y    ; 

Congress,  immunity,  §  476. 

immunity,  see  that  heading  above. 

interstate  commerce  act,  §  497. 

judicial  proceedings,  immunity,  §  477. 

patent  cases,  §  492. 
United  States,  enforcing  attendance  of,  §§  484,  494,  495,  497. 

recognizance  in  criminal  cases,  §  482. 
Vermont,  recognizance  in  criminal  cases,  §  481. 

WOMEN, 

admission  to  practice  in  Supreme  Court,  §  2455. 

WRIT, 

see  various  kinds  of,  below, 
allowance,  habeas  corpus,  §  2205. 
copy  of,  jailer's  authority,  §  2135. 


INDEX  1055 

WRIT — continued. 

not  required  to  bring  a  person  in  custody  into  court,  §  2138. 
one  writ  where  several  indictments  against  same  person,  §  2137. 
removal  of  prisoner  from  one  district  to  another,  §  2136. 

WRIT  NE  EXEAT,  §  1067. 

WRIT  OF  ATTACHMENT, 

see  also  attachment,  ch.  20. 
amendment  of,  §  619. 

WRIT  OF  CERTIORARI, 

applications  under  §  240,  Judicial  Code. 
Addenda  Rule  45  C.  C.  A.  Appendix. 

WRIT  OF  ERROR,  ch.  28, 

Alaska  district  court  to  circuit  court  of  appeals,  §§  2035,  2036. 
Alaska  district  court  to  Supreme  Court,   §  2015. 
allowance  of,   §   827. 
amendment,  §  828. 

appearance  bond  form,  Addenda  Rule  4f>  C.  C.  A.  Appendix, 
appellate  method  of  review  of  state  court  decisions,  §  332. 
assignment  of  errors,  §  830. 

bail,  circuit  court  of  appeals,  Rule  35  C.  C.  A.  (2d  circuit)   Appendix, 
bankruptcy,  circuit  court  of  appeals,  Rule  45  C.  C.  A.   (8th  circuit)   Ap- 
pendix. 

bond.  §§  830,  832. 

certification,  question  of  law,  §  840. 

China,  United  States  court  to  circuit  court  of  appeals,  §  2034. 
circuit  court  of  appeals,  Rule  14  C.  C.  A.  Appendix. 

district  court,  time,  §  823. 

procedure,   §§   826,   839. 

Supreme  Court  to,  §§  824,  2009. 
citation,  §  831. 
costs,  §  845. 

court  of  claims  to  Supreme  Court,  §  2012. 
criminal  cases  circuit  court  of  appeals. 

Rule  35  C.  C.  A.  Appendix. 

34  C.  C.  A.   (4th  circuit)   Appendix. 
37  C.  C.  A.    (5th  circuit)    Appendix, 
damages.  §  845. 
district  court,  §  2031. 

circuit  court  of  appeals  to,  §  823. 

Supreme  Court  to,  time  for,  §  822. 

fact,  no  reversal  for  error  in,  §  844. 

District  of  Columbia  court  of  appeals  to  Supreme  Court,  §  2018. 
filing  record,  §  837. 
form  of,  in  8th  circuit, 

Addenda  to  Rule  45  C.  C.  A.   (8tb  circuit)   Appendix, 
general  statement,  §  820. 


C 


1056  INDEX 

/ 

WRIT  OF  ERROR— continued. 

Hawaii  to  Supreme  Court,  §  2014. 

instructions  as  to  suing  out  for  circuit  court  of  appeals,  Addenda  Rule 

45  C.  C.  A.  Appendix, 
issuance  to  Supreme  Court,  §  829. 
parties,  §  821. 

Philippine  Islands  to  Supreme  Court,  §  2016. 
Porto  Rico  to  Supreme  Court,  §  2013. 
preparation  of  record,  §  837. 
proceedings  in  forma  pauperis,  §  835. 
procedure,  "  , 

appellate  court  after  transcript  filed,  §  843. 

district  court  to  circuit  court  of  appeals,  §  826. 

removal  from  state  court  by  writ  of  error,  §  339. 

summary,  §  839. 

to  territories,  §  841. 

record,  §  836. 
reduction  of  record,  §  837. 

return,  circuit  court  of  appeals,  Rule  14  C.  C.  A.  Appendix, 
reversal  not  given  for  error  in  fact,  §  844. 
state  court  decisions  reviewed  by,  in  Federal  appellate  courts,  ch.  11. 

to  Supreme  Court,  time  for,  §  2056. 
time  for  return  of,  §  2072. 
state  court,  time  for,  §  825. 
summary  of  procedure,  §  839. 
supersedeas,  §  834. 
Supreme  Court, 

certification   of  questions   of   law,   §§   840,    842. 

circuit  court  of  appeals,  time  for,  §  824. 

district  court,  time  for,  §  822. 

procedure,   §   839. 
territories,  §  841. 
time, 

return  of  writ  of  error,  §  838. 

writ  of  error  circuit  court  of  appeals  to  Supreme  Court,   §  824. 

writ  of  error  district  court  to  circuit  court  of  appeals,  §  8i3. 

writ  of  error  district  court  to  Supreme  Court,  §  822. 

writ  of  error  to  state  court,  §  825. 

WRIT  OF  HABEAS  CORPUS, 

see  also  Habeas  Corpus,  ch.  44. 
return  of,  §§  2206,  2210. 
form  of  return,  §  2207. 
time  of  return,  §  2206. 

WRIT  OF  MANDAMUS, 
Supreme  Court,  §  2459. 


INDEX  1057 


WRIT  OF  PROHIBITION, 
Supreme  Court,  §  2459. 

WRIT  SCIRE  FACIAS,  §  1068. 

WRITTEN  INSTRUMENTS, 

see  also  Books,  Papers,  Documents. 

depositions  under  commission,  production  of,  §  517. 

WYOMING, 

districts,  terms  and  places  of  holding  court,  §  148. 

Y. 

YELLOWSTONE  NATIONAL  PARK, 

appellate  jurisdiction  district  court,  §  203. 


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